August is National Wills Month - Who Knew?

 

        You can take care of a number of issues with a will.  Particularly for young couples, one of the most important reasons for having a will is to nominate a guardian for their children should they die while their children are minors, as well as provide for adult supervision of any property left to their minor children.  If you have not executed a will in which you have nominated a guardian for your children, the court may step in and appoint someone.

          By having a will, you can not only choose who is to receive your property when you die, but you can also name an alternate beneficiary or beneficiaries if your first choice fails to survive you.  In addition, you can choose a personal representative to carry out your wishes.  If you die without a will in which you’ve named a personal representative, the court will appoint one.

          When a person dies without a will, they are said to have died “intestate” and their property is distributed pursuant to Arizona’s statutes of intestate succession.

Types of Wills Recognized by Arizona Law

          The Arizona Code recognizes holographic wills, attested wills, self-proved wills, and electronic wills.  To be valid, a will must comply with the execution formalities of either a holographic will or an attested will.  A holographic will does not require witnessing, but it must be signed by the testator, and the material provisions (which would include the identity of the testator’s property and the beneficiaries chosen to receive that property) must be in the testator’s handwriting.

          An attested will must be in writing and signed by the testator and at least two witnesses.  The will does not have to be signed by the testator in the presence of the witnesses, and the witnesses do not have to sign in the presence of the testator or each other.  However, the testator must then tell the witnesses that the signature on the document is, indeed, the testator’s or that the document constitutes the testator’s will.

          Most attorneys continue to execute an attested will with greater formality by having the testator sign in the presence of two witnesses, who then sign the will in the testator’s presence at his or her request, and in the presence of each other.  This helps prevent any question about the validity of the will if it must be probated in another state.

          The advantage of a self-proved will is most evident in the event of a will contest.  Formalities of execution are conclusively presumed if a self-proved will is contested in a formal testacy proceeding.  An attested will may be self-proved either at the time of the original execution or later.  Regardless of when an attested will is made self-proved, the process involves an acknowledgment by the testator and affidavit of the witnesses before a notary public.  There are statutory requirements regarding the content of the language that must be included at the end of the will if it is to be self-proved.

          Regardless of the type of will, the testator must be of sound mind to make a will.  To have sufficient mental capacity, the testator must understand the natural objects of his or her bounty, the kind or character of his or her property, and the nature of the testamentary act.

The Use of a Separate Personal Property List to Dispose of Specific Property

          Certain tangible personal property may be disposed of by a separate written list, but there are some limitations and requirements.  The property and the recipients of that property must be described with reasonable certainty, the list must be referred to in a properly executed will, and the list must be either in the handwriting of the testator or signed by the testator.  In addition, property disposed of by the list must not be property specifically devised in the will itself, and is limited to tangible personal property.  For example, the list cannot be used to dispose of money or property such as bank accounts or securities, which are intangible personal property.

          The purpose of this provision is to allow a testator to prepare a separate list of things such as jewelry, collections, pictures, furniture, clothing, and other personal effects he or she would like to leave to family and friends.  The advantage of a list such as this is that it may be made up after the execution of the will and completed or changed at a later date.  Although there is no limit on the value of the tangible personal property that may be disposed of by the list, it should be used to dispose of items of relatively small value, and valuable items should be specifically devised in the will.

 Disclaimer