What Makes a Will Valid in Arizona?
What Makes a Will Valid in Arizona? is a common question between our clients. Please read the article to understand when a Will is valid in Arizona.
What Makes a Will Valid in Arizona? is a common question between our clients and friends. As Estate Planning Attorneys, we are often asked about Wills and their validity in Arizona. This post will discuss what makes an Arizona Will valid, and whether or not a Will from another state is valid.
A Will is a document recognized by state law that allows a person (the Testator or Testatrix) to dispose of their assets and property upon death in the manner that they wish. This document will designate what property is to go where, appoint a person to be in charge of ensuring that the wishes in the document are honored, and may be used in court as evidence of a person’s final wishes. A will by itself does not avoid probate court at death, but it does ensure that your assets make it to where you want them to go.
What makes an Arizona Will Valid?
In order to be valid, an Arizona Will must be executed by an adult over the age of 18, that has testamentary capacity. This means that the creator must first have the intent to create a will, and that they must meet the threshold for mental capacity. This generally means that they know what they are doing, they know the nature and extent of their assets, they know who would receive their assets if they passed away without a will, and they know that the will they are signing may change or alter the default priority of inheritance under state law. They must have the intent to sign a final draft of the Last Will and Testament.
The Will itself must be in writing and must be signed by the Testator/Testatrix. It must also be signed in the presence of two witnesses, and the witnesses must sign the document in front of the Testator/Testatrix and the other witness. Both the person creating the will, and the two witnesses must sign the documents in each other’s presence, at or near the same time. The witnesses are attesting to having seen the Testator/Testatrix sign the document. They may also be called as witnesses in any judicial proceedings that stem from the Testator’s/Testatrix’s death and may be asked about the general state of being or mental capacity of the person.
What is a Holographic Will?
A Holographic Will is a will allowed in Arizona which does not meet the standards above. This type of Will must have the material provisions completed in the Testator’s/Testatrix’s own handwriting, and it must be signed by the Testator/Testatrix. It need not be witnessed, though it may be. The document itself must declare that this is the instrument that the person is using to dispose of their assets at death.
This is not the best option in Arizona, as you might imagine. We deal with errant Holographic Wills quite often, as there is much room for error. In the same way that we wouldn’t recommend performing your own knee surgery, it is often not the best practice to create your own Estate Plan. There are many laws and just because you can do something, doesn’t mean that you should. Hiring an experienced estate planning attorney that can help to protect both you and your assets is paramount to avoiding probate court when you pass away, and overall making sure that your wishes are honored when you pass away.
Is My Out-of-State Will Valid in Arizona?
As long as your will was executed property in whatever jurisdiction or state you have moved from, and as long as it would be valid in that state, it is likely valid here in Arizona. The full faith and credit clause is a part of the United States Constitution, being found in Article IV, Section 1. This constitutional law dictates that each state give full faith and credit to the laws of other states. Thus, so long as the will is valid in whatever State you come from, then it should be valid in the state of Arizona. This is the legal argument, and would be valid in court for your will. In reality, we are often dealing with banks and with other institutions that may not accept Estate Planning documents from other states. It is in your best interest to have your Estate Plan, including your will, reviewed in whatever new jurisdiction you move to.
Further, there may be legal options applicable and available in Arizona law that were not available to you in your previous state. You will want to have an experienced estate attorney review your Will and other items in whatever new jurisdiction you end up in.
Other Frequently Asked Questions
Must my Will be Notarized?
A will only needs to be signed by the Testator/Testatrix and the two witnesses. A will may be notarized if you want it to be self-proving, meaning that the Will can be admitted in probate court without the hassle of gathering the witnesses to appear in court or sign affidavits verifying that the person who made the will actually signed the document and seemed as though they had capacity.
What can I add to my Will to avoid Probate Court?
In Arizona, the necessity of probate court is decided by how much money or assets you have in your probate estate at death. If you have more than $75,000.00 of assets, or more than $100,000.00 of real property, then Arizona law dictates that your probate estate has to go through the courts. A Last Will and Testament do not avoid probate. You can remove items from your probate estate by using beneficiary designations, such as a beneficiary deed, or transfer on death designations. These are typically used as add-ons to a complete estate plan, and it is always a great idea to contact a skilled professional to ensure that you are making the correct decision for you and your heirs.
The information contained within is not legal advice, and we recommend that you contact Citadel Law Firm office to set up a consultation or review if you have any questions about Wills. While asking about wills, ask what a living will contains and see if that will benefit you in your estate planning as well. Click here to set up your free consultation or call (480) 565-8020. Our estate planning attorneys in Chandler, AZ will be pleased to help you.