How to Do a Will
We are often asked how to create a Will. To start, you should look at your state’s requirements for creating a valid Last Will and Testament (otherwise known as a “Will”). While we always recommend working with an experienced estate planning attorney when you create a Will, here is an overview of Arizona’s requirements to create a valid Will:
How Do I Make a Will?
A Will is one of the most important legal documents you will ever create. Your Will specifies how you want your property and assets distributed after you pass, names a guardian who will care for minor children if you pass, names a conservator to manage any assets left to minor children, and names a personal representative to administer your estate and handle a probate. For more information about Wills please read our article called What is a Will.
For a Will to do these things, (1) you must make a Will and (2) it must be valid. Arizona has a number of requirements to create a valid Will:
Age and Capacity
A person who wishes to create a Will must be age 18 or older and of “sound mind”. (ARS § 14-2501.) This means that the person making the Will is able to understand the what property he or she owns, is aware of who would naturally inherit his or her property (closest surviving family members), and understand that by creating the Will he or she is leaving specific instructions on who should inherit his or her property and what property each individual should inherit. A person who makes a will is called a “testator”.
A Will Must Be In Writing and Witnessed
Arizona law requires that a Will is in writing and signed by the person creating the Will in order to be valid. It is acceptable if the testator is physically unable to sign their name, as he or she may direct another person to do so on their behalf and in the presence of the testator. A valid Will also must be witnessed by two witnesses. The witnesses either need to see the testator sign the Will or be told by the testator that the signature on the Will is in fact the testator’s. Each witness must sign the Will in front of the testator and the other witness.
The two people who witness a Last Will and Testament should not be people who will inherit any part of the testator’s estate. A person who stands to inherit under a Will is called an “interested person”. Although having an interested person witness a Will does not necessarily make the Will invalid, it could create problems if another heir attempts to challenge the Will. Accordingly, you the two people who serve as witnesses should not be named anywhere in the testator’s Last Will and Testament or estate plan. (ARS § 14-2505.)
Handwritten Wills (aka Holographic Wills)
Arizona law also permits handwritten Wills, known as “holographic” Wills. A holographic Will is a Will written in the testator’s own handwriting. For a holographic Will to be valid, it must be signed by the testator. In addition, the material provisions of the Will must be in the testator’s own handwriting. The material provisions of a Will include provisions stating who should inherit property under the Will and specifying the gifts that should go to each person. A holographic Will must also indicate that by creating the Will, the testator actually intends to dispose of his or her property. While it is always the best practice to have a Will witnessed and notarized, a handwritten Will is not required to be witnessed or notarized. (ARS § 14-2503.) Read more about handwritten wills.
Proving the Authenticity of a Will
Arizona law allows a Will to be “self-proved”. A self proved Will is presumed to be authentic and that all of the required elements to execute the Will (signed by the testator and witnesses) have been met. A self-proven Will is very beneficial because if the authenticity of the Will is not challenged, the Will can be probated using a simplified informal probate. Informal probate is much less expensive than formal probate, which will save testator’s heirs a substantial amount of money. In addition, since a court automatically accepts a self-proven Will as authentic, witnesses to the self-proven Will are not needed to testify in court about the authenticity of the Will.
To self-prove a Will, the testator and witnesses must affirm the authenticity of the Will in an affidavit, sign the affidavit in front of a notary, and have the notary stamp affidavit. The self-proving affidavit should either be part of the Will itself or attached to the Will. (ARS § 14-2504.)
When to Make a Will?
If you are over the age of 18, you should make a Will now. Everyone should have a Will in place to preserve their legacy and prevent family disputes. Moreover, if you have children under the age of 18, making a Will is especially critical as a Will is the only place you can name a guardian for minor children. Learn more about the why Wills are important and the estate planning services the Neal Law Firm provides. When you’re ready to get started, call Arizona wills lawyer Abigail Neal at (480) 699-7992.