Is My Will Valid?
Often people find themselves asking, “Is my will valid?” The answer to the question depends on many factors. Even a valid will may not effectively dispose of the testator’s estate in accordance with the testator’s wishes.
The basic requirements for a will, under A.R.S. § 14-2502, are that a will shall be:
- In writing.
- Signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction.
- Signed by at least two people, each of whom signed within a reasonable time after that person witnessed either the signing of the will as described in number 2 or the testator’s acknowledgement of that signature or the acknowledgement of the will.
A testator is a person who makes a will to dispose of his or her estate upon death. Under A.R.S. § 14-2501, a testator must be at least 18 years of age and of sound mind. Additionally, a testator must have testamentary intent. In other words, testators must intend the will to provide instructions for what to do with their property at death. Finally, the testator must sign the will or have someone sign in the testator’s place at the testator’s direction. These requirements are the same no matter what kind of will the testator has created.
In Arizona, an attested will requires the signatures of two witnesses. Witnesses must be 18 years old and generally competent to be a witness. The signing of a will by an interested witness does not invalidate the will or any portion of it. This means an heir can sign the will as a witness if they are 18 years old and generally competent.
There are three kinds of wills that are valid in Arizona; non self-proved wills, self-proved wills, and holographic wills.
Non Self-Proved Wills
A non self-proved will is one that meets the requirements of A.R.S. § 14-2502 provided above. A non self-proving will is valid, but typically requires the testimony of a witness that the will is authentic. When probating a non-self proving will, the court will consider evidence other than the will itself to establish whether the testator intended the document to be a will. Therefore, the court considers notes made by the testator, testimony of witnesses, and other factors in determining the testator’s intent.
Under A.R.S. § 14-2504,
“[a] will may be simultaneously executed, attested and made self-proved by its acknowledgement by the testator and by affidavits of the witnesses if the acknowledgement and affidavits are made before an officer authorized to administer oaths under the laws of the state in which execution occurs and are evidenced by the officer’s certificate…”
Essentially, the testator must sign a sworn acknowledgement declaring he is willfully signing the will and is of sound mind. Witnesses must sign sworn affidavits declaring that they witnessed a testator of sound mind sign the document willingly. Unlike a non self-proved will, a self-proved will does not generally require testimony of a witness that it is authentic.
A holographic will is one that does not comply with the provisions of A.R.S. § 14-2502 (above), but is signed in the testator’s handwriting and the material provisions are in the testator’s handwriting. Thus, a testator may write a will himself so long as the will is in his own handwriting and signed. Material provisions are the provisions that dispose of the testator’s estate. Some people purchase forms online that leave the material provisions blank for them to fill out in their handwriting. Those forms create valid holographic wills. Holographic wills can sound enticing to many people due to the ease of creating one. However, many problems can result from a holographic will.
A testator may have a holographic will that is ambiguous. Holographic wills may not dispose of the estate. They may fail to name contingent beneficiaries. They may even devise property that the testator no longer owns. Many of these issues can lead to an intended beneficiary getting nothing or a portion of the estate going by the intestacy statute instead of to intended beneficiaries.
The intestacy statute, A.R.S. § 14-2103, provides a default estate plan for those who do not have a will or have portions of their estate that the will does not dispose of. In either of these situations, the testator’s property could sometimes go to the state after death. Therefore, testators must take every possible step to ensure that their wills are valid and fully dispose of their estates.
Phelps & Moore Can Help With All Your Estate Planning Needs
At Phelps & Moore we have a dedicated and talented team of attorneys to help you with your living will, will, and trust needs. Whether you need a will, trust, advance directive, to revoke or supplement a will, or any other estate planning documents, we can help you to ensure that your final wishes are carried out exactly as you intend. Call us today for a free 30-minute consultation at (602) 788-2089.
The information and views contained in this posting are not legal advice, nor do they form an attorney-client relationship.