The Risks of Writing Your Own Last Will and Testament in AZ - why shouldn't you do that?
Under Arizona law you can write your own Last Will and Testament, even holographic wills are accepted. Read our blog article to understand why it is a bad idea.
In our increasingly DIY-oriented world, many individuals are tempted to take matters into their own hands, even when it comes to crucial legal documents like a Last Will and Testament. However, while the idea of saving money on legal fees and crafting a personalized document might be appealing, there are significant risks associated with writing your own Last Will and Testament in Arizona.
Crafting a Last Will and Testament is a vital component of estate planning, ensuring your wishes are respected and assets are distributed as intended after your passing. In an attempt to cut costs and assert control over the process, some individuals consider writing their own wills. However, the risks associated with this DIY approach in the state of Arizona can often outweigh the perceived benefits.
We have prepared two case studies as examples of wills that were written by individuals without the advice and help of an estate planning lawyer. These cases resulted in unnecessary legal costs. Please read them below.
Case study 1: 13 beneficiaries and a double defective Beneficiary Deed
Cost of the Probate: $7,173.05
Cost of an estate plan if done before (for the couple): $2,000
We recently had a case in which a husband and wife decided to write their own last will and testament, as well as their own beneficiary deed. The husband passed away first, and probate was accidentally avoided in his case.
The wife passed away about 6 months after the husband. She never had children, so she intended to leave all her assets to the children of her husband and his grandchildren. There were four stepchildren and nine step-grandchildren named in the homemade will. Each stepchild inherited 20% of the estate, and each step-grandchild inherited 1/9 of 20% of the estate.
The couple also chose to draft and record their own beneficiary deed. Unfortunately, they made three mistakes on the recorded beneficiary deed:
- First mistake: They did not inform their children or stepchildren.
- Second mistake: They used the wrong parcel number on the deed, which prevented the deed from appearing correctly in online searches (1st defect).
- Third mistake: They included the wrong legal description on the deed, which also prevented the deed from appearing correctly in online searches (2nd defect).
After obtaining waivers from all 13 beneficiaries, the personal representative was appointed, and the family house was placed for sale. Just as the sale of the house was about to close, the double defective deed was discovered.
Fortunately for the family, a title company accepted the beneficiary deed and the legal risk associated with it. Moreover, the title company agreed to provide title insurance for the property's sellers. Had the title company not accepted the double defective deed, a transition from informal probate to formal probate would have been required in the probate court to comply with Arizona law. The eventual outcome would have involved even higher legal costs.
The legal document they created to serve as the wife's Last Will and Testament was also different from the recorded beneficiary deed. The self-made will named 13 beneficiaries, while the deed only listed 4 beneficiaries. If one of the step-grandchildren disagreed with this decision, they would likely have grounds to file a lawsuit against the estate and the personal representative.
Additionally, the will lacked a self-proving affidavit attached to it, which might have exposed the situation to allegations of undue influence under Arizona law as the double defective deed was recorded when the husband was in his deathbed. There was room to say that the deceased person may not have been of sound mind.
Fortunately, no minor children were involved due to pure luck. The youngest step-grandchild was 19 years of age. If the last surviving spouse had passed away a few years earlier, probate with a minor as a beneficiary would have further complicated the case. Probate involving minor children requires rigorous court supervision and typically takes up to 2 years.
Conclusion: An estate planning done by a lawyer would have cost the family $2,000 and avoided probate. By writing their own will and beneficiary deed, they incurred an additional cost of over $5,000 and went through the probate process, which alone took longer than 8 months.
The personal representative also removed 9 beneficiaries from the proceedings of the house, opening the case for future litigation and liability under an Arizona law probate court.
Case study 2: Will full of personal information and with contradictions
Cost of the Probate + Litigation: $8,817.50 now, probably closer to $15,000 after the case ends
Cost of an estate plan if done before: $3,500
An unmarried male individual with no children decided to write his own will, leaving everything to his cousins. His estate was valued at just under $1 million. The estate has a house, a couple of cars, and a few bank accounts.
Despite lacking a legal background, the individual used numerous legal terms in his will. Unfortunately, the improper use of these legal terms sparked controversies within the last will and testament, making it impossible for the personal representative to allocate assets correctly to the beneficiaries.
One example was the bequeathing of the same asset (the house) to a person mentioned earlier in the will, and subsequently to the same person along with her family.
A motion to the probate court is still ongoing to clarify who the correct beneficiaries of the will are.
The individual also divulged a significant amount of personal information in the will. The necessity arose to petition the court to seal the legal document due to the exposure of multiple Social Security numbers of the beneficiaries, as well as other personal details such as addresses and phone numbers. The motion to seal the document alone cost around $2,000 in legal fees.
Social security numbers should not be included in a Last Will and Testament. Please refrain from including any social security numbers in a Will.
The primary beneficiary of the Will is also on her deathbed. There are no provisions outlining the fate of the assets granted to her in case she passes away before the probate concludes. A Revocable Living Trust, professionally crafted by an experienced estate planning attorney, would incorporate such provisions.
If this beneficiary passes away before the case concludes, a second probate will be required, as all inherited property will become part of her estate. We fervently hope for a resolution before her passing.
Moreover, the individual resides in a separate property state rather than a community property estate. It remains unclear how the assets will align within the spouse's estate or if they will pass down a generation. An additional probate may also be necessary in her home estate.
Conclusion: An estate planning done by a lawyer would have cost the individual $3,500 and avoided probate by creating a revocable living trust with minimum trust administration. By writing their own will, they incurred an additional cost still to be estimated as the case is still ongoing.
The Importance of Professional Guidance:
Estate planning involves intricate legal nuances that vary from one jurisdiction to another. In Arizona, specific legal requirements must be met to ensure the validity of a Last Will and Testament. Without proper legal expertise, you might inadvertently overlook critical details, rendering your document ineffective or contested in the future.
A self proved will with two witnesses and a notary, along with a self-proving affidavit to demonstrate the testator's conscious presence (sound mind), is always recommended.
Addressing Testamentary Intent:
A professionally-drafted will addresses your testamentary intent clearly, leaving no room for ambiguity. DIY wills, on the other hand, are prone to vague language, potentially leading to disputes among beneficiaries about your true wishes. This can result in protracted legal battles, consuming time, resources, and creating emotional distress.
The testator's property could potentially become entangled in a probate court for years.
Navigating the Probate Process:
Arizona's probate process can be complex, involving numerous steps and legal formalities. Mistakes in your DIY will can lead to unnecessary delays and complications during probate. An experienced attorney understands the intricacies, ensuring your will adheres to the necessary guidelines, expediting the distribution of assets to beneficiaries.
Your primary objective when collaborating with an estate planning lawyer should be to entirely avoid probate. Solely relying on Arizona wills does not accomplish that.
Considering Unforeseen Complications:
DIY wills often fail to account for unforeseen life changes and legal developments. For instance, the birth of a child, changes in marital status, or alterations in property ownership can significantly impact the distribution of assets. A professional attorney anticipates these changes, helping you craft a will that remains relevant through various life stages.
Protecting Against Challenges:
A DIY will may lack the legal terminology required to discourage challenges. By including a no-contest clause and adhering to established legal language, a professionally-crafted will can discourage beneficiaries from contesting its validity, preserving your intended distribution of assets.
Call an Estate Planning Attorney in Chandler today.
While the idea of creating your own Last Will and Testament in Arizona might appear cost-effective and convenient, the potential pitfalls and legal ramifications are substantial.
To safeguard your assets, protect your loved ones, and ensure your wishes are respected, consulting a qualified estate planning attorney is an investment in both peace of mind and the secure future of your estate.
The complexities of the legal system demand expertise, making professional guidance indispensable in the realm of estate planning.
Call (480)565-8020 to schedule you free estate planning consultation, or click here. Our estate planning attorneys will be pleased to help you with your Arizona last will. We have the experience to create an Arizona will that fulfill your needs.
Frequently asked questions about Arizona Wills
1) What is a Arizona Will or Arizona Last Will and Testament?
Arizona is a community property state. An Arizona Will, also known as an Arizona Last Will and Testament, is a legal document that outlines a person's wishes regarding the distribution of their assets and property after their death, following the laws and regulations specific to the state of Arizona, USA.
An Arizona Will serves as a crucial tool in estate planning, allowing individuals to dictate how their assets should be distributed among beneficiaries, appoint guardians for minor children, and name an executor to oversee the process.
Crafting a well-drafted Arizona Will ensures that one's intentions are legally recognized and can help streamline the probate process for loved ones, potentially avoiding complications and disputes. However, it's important to note that while an Arizona Will is a significant component of estate planning, it might not completely eliminate the need for probate, especially in cases involving complex assets or legal intricacies. Consulting with a qualified attorney can provide valuable guidance to create a comprehensive plan that aligns with Arizona's legal requirements and the individual's unique circumstances.
2) What is a self proved will that meets Arizona laws?
A self-proved will that adheres to Arizona laws is a testamentary document that has been executed and notarized in a manner that simplifies the probate process. In Arizona, a self-proved will is one where the testator (the person making the will) and witnesses sign affidavits confirming the authenticity of the will's execution. These affidavits are notarized, affirming that the will was executed according to legal requirements and that the testator was of sound mind at the time of execution. This process aims to expedite the probate process by allowing the will to be admitted to probate without the need to involve witnesses in court hearings to validate its authenticity.
For a Arizona last will to be considered self-proved in Arizona, the testator and the witnesses must appear before a notary public together. The notary administers an oath to the testator and witnesses, and they sign affidavits declaring the will's proper execution. This self-proving process can substantially streamline the probate proceedings, making it easier for the will to be admitted to probate court. A self-proved will reduces the burden on the witnesses to prove the will's validity after the testator's death, potentially saving time, effort, and potential legal disputes for the beneficiaries during the probate process.
3) What is testator's conscious presence?
The concept of the testator's conscious presence refers to the legal requirement that a person making a will (the testator) must be mentally aware and cognizant of the act of signing their will in the presence of witnesses.
This principle underscores the importance of ensuring that the testator is not coerced, deceived, or acting under duress while executing their will. In legal terms, the testator's conscious presence ensures that the testator understands the significance of their actions and is fully aware of the content of the will they are signing. This requirement helps validate the authenticity and voluntariness of the will, safeguarding against potential challenges to the document's validity in the future.
An affidavit with two witnesses and a notary public can attest that someone is mentally capable to sign their valid will.
4) Do I need a Will if I have minor children under Arizona law?
Absolutely, having a will becomes even more essential if you have minor children under Arizona law. A will serves as a crucial instrument for outlining your wishes regarding the guardianship of your children in the event of your untimely passing. Without a will, the court could be left to determine who will take care of your children, potentially causing uncertainty and stress for your loved ones during an already challenging time.
By naming a guardian in your will, you have the opportunity to choose someone you trust to raise your children according to your values and beliefs. This decision can offer both emotional reassurance and stability for your children's future.
Furthermore, a will allows you to allocate assets and property to your minor children in a structured manner. Minors cannot directly inherit property, so without clear instructions in a will, the court might need to appoint a conservator to manage the inheritance on their behalf to tale care of material provisions.
This process can be time-consuming, expensive, and might not align with your intentions. Through a will, you can establish trusts for your children's benefit, stipulating when and how they will receive their inheritance. This empowers you to provide for their financial well-being while ensuring that the assets are managed in a way that aligns with your wishes until your children reach a suitable age to manage their inheritance responsibly.