A Will is one of the most important legal documents a person will create during his or her life. A Will states how a person’s money and property should be distributed upon his or her death, names a personal representative to administer the estate, names a guardian to care for minor children and names a conservator to manage minor children’s assets. For more information about Wills, see my article What is a Will?
In order to accomplish these functions, a Will must be valid. Arizona law sets forth a number of requirements for a Will to be valid:
Required Age to Make a Last Will and Testament
The person making the Will must be 18 years of age or older and must be of sound mind. (ARS § 14-2501.) At a minimum, the person signing the Will must be able to understand the extent of his property, know the individuals who would naturally benefit from his death (closest surviving family members), and must understand that by executing a Will he is giving specific instructions on who his beneficiaries should be and what property his beneficiaries should receive.
A Will Must Be In Writing
Arizona law also requires that the Will is in writing, signed by the person making the Will (the “testator”), and two witnesses. If the testator is unable to physically sign his name, he may direct another person to do so for him in his presence. Each witness must either see the testator sign the Will or be told by the testator that the signature on the Will is the testator’s. Each witness must sign the Will in the presence of the testator and the other witness. (ARS § 14-2502.)
Arizona law also provides for holographic Wills. A holographic Will is one that is in the handwriting of the testator. For a holographic Will to be valid in Arizona, it must be signed by the testator and the material provisions must be in the testator’s handwriting. Material provisions are those provisions that name beneficiaries and their gifts. The writing must also indicate that the testator intends and wants to dispose of his or her property with the writing. A holographic Will may be witnessed, but does not need to be. (ARS § 14-2503.)
Wills and Witnesses
The witnesses to a Will must be generally competent. It is a good idea that the witnesses to the Will be “disinterested”, meaning that they do not inherit anything under the Will. However, in Arizona a Will is not invalid just because it was witnessed by an interested party. (ARS § 14-2505.)
Proving the Authenticity of A Last Will and Testament
Arizona law allows for Wills to be “self-proved”. If a Will is self-proven and the authenticity of the Will is not challenged, the Will may be probated in a simplified informal probate. Since a court automatically accepts a self-proven Will as authentic, witnesses to a self-proven Will are not required to testify in court. A Will can be self-proven if the testator and witnesses affirm the authenticity of the Will in an affidavit in front of a notary, and the notary stamps the affidavit. The affidavit should either be part of the Will itself or attached to it. (ARS § 14-2504.)