Answers to Common Questions About Wills

Answers to Common Questions About Wills

Estate & Business Planning Attorney

Answers to Common Questions About Wills

What is required for a Valid Will Under Arizona State Law?

For a will to be considered valid in the state of Arizona, it must meet several requirements.

Requirements For A Valid Will In Arizona
Will
Self-Proved Will
Holographic Will
  • Made by testator 18+ years of age
  • Testator is of sound mind
  • Written document
  • Signed by the testator
  • Signed by two competent witnesses
    • Made by testator 18+ years of age
    • Testator is of sound mind
    • Written document
    • Signed by the testator
    • Signed by two competent witnesses along with an affidavit from witnesses signed before a notary
    Most Effective
    • Made by a testator 18+ years of age
    • Testator is of sound mind
    • Material portions of the will are written in the testators own handwriting
    • Signed by the testator
    • Does NOT require the signature of any additional witnesses
    Not Recommended

    In Arizona, a will must be created by someone of sound mind who is 18 years of age or older in order to be valid. In addition, a will must be written and signed by two competent witnesses as well as the testator. The validity of the will can be further bolstered by “self-proving” the will. A will is “self-proved” if it is signed by the testator and witnesses along with affidavits from the witnesses while before an officer authorized to administer oaths (such as a notary). A self-proved will is beneficial because it will pass through probate more expeditiously. The court may presume that the will is valid without first contacting the witnesses.

    Arizona law also allows for “holographic wills.” A holographic will is a will which is written in the testator’s handwriting. For a holographic will to be valid, it must be signed by the testator and the material provisions of the will must be in the testator’s own handwriting. A holographic will is valid even in absence of witnesses. A holographic will is not the best option for most situations.

    It is important to be aware that there are additional statutes which impact the validity and efficacy of a will. It is best to have your will prepared by an attorney who is familiar with the formalities which are required for a valid will and who can offer experienced advice catered to your unique situation.

    What is a decedent?

    The legal term for a person who has died.

    What is a devisee?

    A devisee is a person or entity named in the decedent’s will which stands to receive a legal benefit, usually a financial benefit, upon the death of the decedent.

    What is an heir?

    An heir is a person who will receive a legal benefit, usually a financial benefit, based upon the laws of intestacy upon the death of the decedent, in the absence of a valid will, trust, beneficiary designation, or joint ownership with right of survivorship.  This usually  includes the person’s spouse, children, other direct descendants, siblings, parents, and other close family members, though it can vary based upon the circumstances.  Intestate inheritance is primarily governed by A.R.S. § 14-2101 through 14-2104.

    What is an executor or personal representative of a will?

    States differ in whether they use the term executor or personal representative. In Arizona, we use the term personal representative rather than executor.

    A personal representative is the person who has been assigned in the will, or appointed by the court, to carry out the provisions of a decedent’s will. This person is often a spouse or child of the decedent, although the testator is free to select some other trusted individual such as a close friend or trusted advisor to fulfill this role. As it is common for a child or spouse to be the personal representative of an estate, it is also common for a personal representative to also be a beneficiary of the estate. In some cases, a person may choose to refuse to accept the role as personal representative and the testator or the court can select another individual to fulfill this duty.

    What is a fiduciary

    A fiduciary is an individual or organization which has been given authority to act on behalf of the best interests of another. Fiduciaries are often called upon to manage financial matters and assets for another who is unable to. A fiduciary owes a duty of care and loyalty to the persons or entity for which it acts. As a fiduciary manages assets, the fiduciary does so not for its own benefit, but rather for the benefit of the principal or beneficiaries. In estate planning, trustees, personal representatives, guardians and executors all take upon themselves fiduciary roles on behalf of the principal or beneficiaries.

    What is a testator or testatrix?

    A person who makes a will or has died after having created and executed a valid will is called a testator. A testatrix is a word that is used to describe a female testator. The word testator, however, may be used to describe a person – whether male or female – who executes a valid will.

    Who is an interested person?

    An interested person is generally defined as any person or entity which has a property right or claim against a trust or estate. This typically may include children, spouses, heirs, devisees, beneficiaries, and creditors. An interested person may also include a trustee, personal representative, or other fiduciary.

    What does testate and intestate mean?

    Testate is a term that refers to the condition of a decedent’s estate when the person has died with a will. If the individual has died without having a will, that person is said to have died intestate. Generally, if a person dies with a will, the estate is distributed according to the provisions of the will. If a person dies intestate (without a will), the assets of the estate will generally be distributed according the default intestacy laws of the state where the decedent has died, rather than according to the desires of the decedent or the decedent’s family.

    What are the duties of a will’s personal representative?

    A personal representative takes on a fiduciary role to carry out the provisions of the testator’s will including processing the will through probate. In the beginning stages of probate, the personal representative may be required to notify interested persons, such as beneficiaries and creditors that they have been appointed as the personal representative of the estate. The personal representative will also prepare an inventory of the assets, and any liabilities or liens against those assets, in the decedent’s estate. Interested persons may request a copy of the inventory. The assets in the estate must be protected and taken possession of by the personal representative. Personal representatives also generally have the authority to maintain the assets in the estate. The personal representative may exercise authority to both receive and distribute assets, pay creditors, fulfill contractual obligations of the decedent, and make necessary repairs to property. The personal representative must ensure that these activities are exercised reasonably and for the best interest of the estate and its beneficiaries or he or she could be held personally liable for failing to fulfill these duties.

    In Arizona, can a personal representative (executor) of a will also be a beneficiary?

    Yes. A personal representative may also be a beneficiary, whether that person was appointed in a will or has otherwise been appointed as a personal representative. For example, a parent will frequently choose one of their children, who is also designated as the beneficiary in their will, to be the personal representative of their estate. When necessary, is also quite common for a court to appoint a decedent’s child (who is likely also a beneficiary) to act as a personal representative over the estate. In fact, the decedent’s spouse may also act as the personal representative even in situations where the spouse may be the sole beneficiary of the estate.

    How do I deal with a problematic will or administration of a will?

    Following the final wishes of a beloved family member or friend as outlined in their will is usually a straightforward procedure. But at times the estate can be complex or there can be reason to contest a will. If you believe that there is reason to contest a will, you should consult with a qualified attorney about the situation and your options. There are grounds which, if proven, are typically considered sufficient to invalidate a will or a portion of a will. Those grounds include:

    • The decedent lacked mental capacity when the will was made
    • There is fraud involved with the will or its creation
    • The will was made under duress (threats, extreme coercion)

    What can I do if a will is not being followed or administered properly?

    Occasionally, a personal representative may not conform to the provisions of a will or otherwise violate their duties. For example, a personal representative could fail or refuse to provide copies of the will to interested persons, such as the heirs, or may administer the provisions of the will in a way that is not in the best interest of the beneficiaries of the will. A personal representative could also fail to preserve the estates assets or fulfill the continuing contractual obligations of the decedent. In extreme cases, a personal representative could be involved in taking or using the estates assets for personal benefit.

    There are legal ways to enforce a will and a personal representative may be held personally liable for failing to fulfill his or her duty. It may be best to resolve the matter outside of court to avoid the possibility of probate being escalated from an informal probate to a formal or supervised probate. In such circumstances, it is best to consult with an attorney as to how to best handle your specific situation.