Will in Arizona

Most individuals believe that good estate planning is having a Will drawn up by a local attorney. Most are wrong.

A Will is nothing more than a written document that tells the court who gets what and how much of your stuff you want them to get.

Laws pertaining to Wills vary from state to state. Here we will focus on Arizona’s law.

If you are new to Arizona and had your Will drawn up in another state, it may be a good idea to update your Will. This will insure your Will meets the requirements for Will in Arizona.

Basics for Will in Arizona

The  two types of Wills in Arizona: 

1: Holographic – a holographic Will is a handwritten Will signed by the person that made the Will. The person’s handwriting verifies it.

2: Formal – A formal Will can be handwritten or typed. What makes it formal is it has two witnesses sign the document.

Are electronic Wills in Arizona allowed?

Yes, under A.R.S. § 14-2518, electronic Wills in Arizona are permitted.

The key here is the witnesses must be present when the Will is electronically signed by the testator and stored electronically.

Just my opinion, that an electronic version of a Will is such a great idea. It will add a layer of complexity when reviewed by the court.

Arizona Requirements for a Will:

Arizona Revised Statues under Title 14 defines the required wording for Wills in Arizona to be valid; here are the basic requirements.

• You must age 18 or older to make a will. A.R.S. 14-2501
• Must clearly state the intent of the testator (the person whose will it is

also known as the “testatrix.”) 

• The testator must be of sound mind – not deemed incompetent.
• No undue influence is applied to get the person to make a will.

Wills in Arizona must be all of the following to be valid**:

• In writing – handwritten Wills in Arizona are legal. A video recording is not enforceable on its own.
• Wills in Arizona must be signed by the testator and in front of two witnesses.
• A notary is only needed if you want the Will to be self-proving. The courts automatically accept a self-proving Will without any of the witnesses of the Will.

(Source A.R.S Title 14)

Sounds Simple Enough, I Can Simply Sit down and write out my Will.

Yes, a Will in Arizona can be handwritten, so you can get a pen and paper and start writing:  You can find guidelines in A.R.S. § 14-2504. Start this, see below:

I, _______________, the testator, sign my name to this instrument this _____ day of _______________, and being first duly sworn, do declare to the undersigned authority that I sign and execute this instrument as my Will and that I sign it willingly, or willingly direct another to sign for me, that I execute it as my free and voluntary act for the purposes expressed in that document and that I am eighteen years of age or older, of sound mind and under no constraint or undue influence.

X_______________________
Testator (your name)

I _______________________ leave to ___________________, my ?
(Source  A.R.S. § 14-2504)

This type of Will is a holographic Will. A holographic will can be admitted to Probate in Arizona. 

But wait, unless you have at least two witnesses that you wrote the Will and not under any undue influences, then your Will could be rejected by the court, or a family member could challenge it in Probate Court.

Also problematic if your witnesses are also one of your beneficiaries. Here another person can claim that the Beneficiary used undue influence to get you to make out a will naming them as a beneficiary.

The Probate Court is likely to find undue influence if it is proven that:

• There was a confidential relationship between the Will maker and Beneficiary. (close relative, spiritual advisor, doctor, attorney, financial advisor) and
• The Beneficiary actively helped the person making the Will sign it.
• The person using the influence is a principal beneficiary of the Will.

(Evans v Liston 116 Ariz. 218 (App 1977): 568 P.2d 1116)

So how can I prevent a challenge to my Will in Arizona?

There are many ways for a Will in Arizona to be challenged. That is why it is best to have it prepared by a Certified Legal Document Preparer or Attorney.

See About Certified Legal Document Preparer  also see Azcourt.gov

**Note that being valid doesn’t mean it will avoid Probate. The definition of the word probate is proving the Will or establishing the validity of a Will in Arizona.

So only having a Will is a guaranteed ticket to Probate.

What is the Probate Process in Arizona?

Probate is the process used to process the final administration of your estate. The basic steps are:

1. Your assets are assembled and inventoried.
2. All your debts are identified and inventoried.
3. Administration costs are paid. The attorney, executor, appraisers, if needed, just to name a few. Assets are sold to raise cash if needed.
4. Taxes are paid.
5. Debts are paid.
6. Burial or Funeral Costs

What is left is paid to the beneficiaries of the Will or heirs according to intestate succession.

What is the purpose of Probate?

It is a process that allows the personal representative of your Will to transfer legal title of  your property per your wishes to your beneficiaries.

What Does the Probate Process Cost?

Probate can be expensive and time-consuming. The longer it takes to Probate your Will, the higher the cost. Attorneys charge by the hour, so there is a big incentive for a greedy attorney to slow-walk the process.

The average cost can range from a low of $2000 to over $5000 for an uncontested estate.

A friend of mine here in Arizona was still going through the process five years after the death of his friend that he lived with for over 10 years had passed. The estate shrinkage was astronomical. His cost was in the $10,000s of thousands.

If you are an heir, don’t think you are out of the woods if you only go through an informal Probate. The Will can be contested; potential heirs have one year from the end of the informal process or two years from the date of death! See  A.R.S. § 14-3108 (3)

What is a Personal Representative?

The Personal Representative is the person who is legally responsible to fulfill the directions or instructions of the deceased person. They are also liable for damages if not done correctly.

Can I have a penalty clause in my Will if someone tries to contest it?

The wording in Wills in Arizona penalizing someone for contesting a will is unenforceable if the person challenging the Will has a probable clause ( legal words for “had a good reason to do so”)  for the contest. A.R.S. § 14-2517

Oh, by the way, “That’s not fair!” is not a probable clause.

This clause is called an “In Terrorem Clause.” It is called this because when used in Wills in Arizona, it is designed to cause fear (if not terror) in the Beneficiary’s heart.

Many states do not allow such a clause,  Arizona does. Though it is unenforceable to have a Terrorem Clause written in Wills in Arizona, it can be a way to slow someone down, cause them fear that they could get nothing if they contest the Will.

Also if the person losses the contest and the court determines it was without cause, they could be subject to the penalty clause.

Best to explain to the person that is being cut out of the will or is getting less why you are doing this. In that way it will not come as a big shock.

Can I leave my spouse nothing?

Arizona is a Community Property State and under the Arizona **  A.R.S. § 25-211 ,  

1. All property acquired by either husband or wife during the marriage is the community property of the husband and wife except for property that is:
2. Acquired by gift, devise, or descent.
3. Acquired after service of a petition for dissolution of marriage, legal separation or annulment if the petition results in a decree of dissolution of marriage, legal separation or annulment.
4. Notwithstanding subsection A, paragraph 2, service of a petition for dissolution of marriage, legal separation, or annulment does not:
5. Alter the status of preexisting community property.
6. Change the status of community property used to acquire new property or the status of that new property as community property.
7. Alter the duties and rights of either spouse with respect to the management of community property except as prescribed pursuant to section 25-315, subsection A, paragraph 1, subdivision (a).

** Source A.R.S Title 25 section 211 (A)  

I.R.A.s and 401Ks are protected in Arizona,  financial institutions are required to have the spouse of the owner of an I.R.A. or 401K, or any Erisa Plan to agree to be disinherited.

How about in a will

The Five Ways to Avoid Probate

1. Just Don’t Die!
2. Set up a Trust
3. Use Beneficiary Designations
4. Properly Title Real Property
5. Have a Small Estate

1. Don’t Die! – Great plan if you can figure a way to cheat death.
                          Good luck with that! L.O.L.!

2. Set up a Trust – Estate Planning 101

• Trusts avoid Probate and are very difficult to contest and provide complete privacy.
• Advantages of a Trust.
• Avoids Probate at death.
• Avoids multiple probates if you own property in several states.
• Can prevent court control of assets when incapacitated.
• Brings all of your assets together under one plan.
• Provides maximum privacy.
• Allows quicker distribution of assets to your beneficiaries.
• You can choose the age that you want your beneficiaries to receive your assets.
• Inexpensive, easy to set up and maintain.
• A trust can be changed or canceled.
• Very difficult to contest.
• It prevents courts from controlling inherited assets for minors.
• Can protect dependents with special needs.
• Helps to prevents unintentionally disinheriting family members.
• Provides Peace of Mind.

What are the Three Main Types of Trusts?   See Here
What is a Living Trust? See Here

3. Use Beneficiary Designations.

When you name a beneficiary on a financial account, annuity, or a life insurance policy, the asset or death proceeds from the life insurance pass directly to the person you have named as the Beneficiary, thereby bypassing Probate court altogether.

With Real Property (your home) you can use a Beneficiary Deed to pass the property and avoid the Probate Process.

4. Properly Title Real Property

Properly holding ownership of property can also avoid Probate. A deed is filed as  Joint Tenants with Right of Survivorship – JTWROS.

When one of the joint tenants (spouses) dies, the property automatically passes to the other tenant and avoids Probate.

5. Have a Small Estate. A.R.S. § 14-3971

If the value of the personal property is less than $75,000 (cash, bank accounts, stocks and bonds, cars, jewelry, money owed to the person who died, etc.) and Real Property (land and structures on the land) is less than $100,000.

To file using the Affidavit Here “Affidavit for Collection of All Personal Property.”

This is an informal process and does not require an appearance before a Judge.