Types of Wills and Legal Requirements for Creating Your Will

No particular form of will is required, so long as there has been compliance with the legal requirements. The law of wills differs from state to state. This article is based entirely on Arizona law.

Any person 18 years of age or older and of “sound mind” may execute a will. A person who executes a will is called a “testator.” The law does not require any residence or citizenship, so that nonresidents of Arizona and aliens may make valid wills in Arizona.

There are many ways that property may be disposed of after death:

a) under a will or living trust

b) pursuant to joint tenancy and community property survivorship provisions

c) by “pay on death” clauses and insurance contract designations; and

d) by informal lists (for tangible personal property, such as jewelry and furniture).

The most common way for property to be disposed of after death is under a will, although living trusts are becoming more popular and, in many cases, have the important benefit of avoiding probate.

Legal Requirements

A will must be signed by the testator or by someone at his direction and in his conscious presence. A person may sign by making a mark (“X”) if illiterate or incapacitated. Two attesting witnesses must sign the will. Interestingly, there is no requirement that the witnesses sign in the presence of the testator or each other, although most often all three persons (the testator and two witnesses) sign the will at the same time in each other’s presence.

Under Arizona law, a beneficiary under the will may act as a witness. The law in many other states is different. Earlier Arizona law invalidated the whole will if a beneficiary acted as a witness.

Foreign wills do not necessarily have to be redone to be valid in Arizona. A written will is valid if it is executed in compliance with the law of the state or country in which it is executed. Therefore, a will that was valid when it was executed outside the state of Arizona is valid in Arizona, regardless of where it was executed or whether it meets Arizona’s requirements for execution.

A will may be made “self-proved” either at the time of the original execution or later. A self-proved will contains an acknowledgment by the testator and affidavit of the witnesses before a notary public. The advantage of a self-proved will is greatest in a will contest. If a self-proved will is contested in court, the formalities of proper execution are conclusively presumed.

Holographic and Oral Wills

A “holographic will” is a will that is in the testator’s handwriting and not witnessed. Holographic wills are valid in Arizona if the signature and material provisions are in the handwriting of the testator. A testator can create a valid holographic will by using a preprinted form, as long as the form is signed and the designation of beneficiaries and the estate appointment are in the testator’s own handwriting. A holographic will does not need to be dated.

Arizona formerly allowed oral wills if made in the testator’s last illness before three witnesses, but that statute has been repealed. An oral will is no longer valid.

Separate Writing for Tangible Personal Property

The law allows a separate writing to dispose of items of tangible personal property. Tangible personal property is property which may be felt or touched, such as a chair, a com­puter, or a watch. The purpose of this provision is to allow a testator to prepare a separate list of things, like furniture, household goods, jewelry, antiques, pictures, guns, and other personal effects, that the testator wants distributed to relatives and friends. The list does not have to comply with the normal formalities for execution (discussed earlier), but it must be referred to in a properly executed will and must be in the handwriting of the testator and signed by him. The list can be made up after the execution of the will and changed from time to time if the testator so wishes. It is a particularly useful provision if:

1) the testator has not thought through his wishes with respect to these items at the time he executes his will

2) his possessions are likely to change

3) he may want to change the list later

Although there is no limit on the value of the tangible personal property that may be disposed of by such a list, it would be unwise to use the list as a means of passing valuable jewelry, antiques, collections, paintings, vehicles, or the like. These items should be specifically disposed of by the will, and the list used only for items of relatively small value. It should be noted that a testator may execute an attested will and later execute in his own handwriting a document disposing of any kind of property he wishes. In other words, a valid holographic will can revoke the provisions of the attested will, and the holographic will is not limited to tangible personal property.

Personal Representative

A testator may nominate a personal representative in his will. A personal representative (formerly known as an executor) administers the will following the testator’s death. Any person 18 years of age or older is qualified to serve as a personal representative unless the court finds the person to be unsuitable. A person who is incompetent would, for example, be unsuitable to serve as personal representative. A corporation or other legal entity may also serve as a personal representative. Neither Arizona residence nor United States citizenship is required for a personal representative. Of course, consent of the person or institution to be named should be secured prior to completing the will to assure that the nominee will serve.

The testator may request that the personal representative serve without bond. A bond is a form of security that in most cases takes the form of an insurance policy. It protects the beneficiaries in case the personal representative fails to properly perform his duties. In the absence of a waiver of bond in the will, the court may require a bond. Qualified trust companies and banks are not required to post bonds, however.

Once appointed by the court, the powers of the personal representative are very broad and comprehensive. Generally, no further court authorization or approval is required for the personal representative to exercise those powers.

A personal representative is entitled to reasonable compensation for his services, and the will may specify the amount of the fee.

Guardian for Minor Children

A testator can also nominate a guardian for minor children in a validly executed will. A guardian is a person who is responsible generally for the health, welfare and safety of a minor. It is good practice for the parent of a minor child to nominate a guardian for the child in the event the other parent predeceases the testator, or is not able to care for the child after the testator’s death. It should be noted, however, that a minor 14 years of age or over may object to the appointment of the guardian nominated in the will.

Revocation

Two distinguishing characteristics of a will are that it is cancelable (revocable) prior to death, and that it takes effect only at death. A testator may cancel a will in whole or in part by executing a subsequent will that revokes the previous will or part expressly or by inconsistency, or by performing a “revocatory act.” Burning, tearing, canceling, obliterating, or destroying the will or any part of it with the intent to revoke it will be sufficient. The physical act must be accompanied by the present intent to revoke. The requisite physical act can even be performed by a third person if directed by the testator to be done in his presence.

A will may also be revoked by operation of law. A divorce or annulment revokes the provisions in a will in favor of the ex-spouse and his or her relatives. In cases where there is a felonious and intentional killing of the testator, the provisions of a will benefiting the killer will be revoked.

If a testator marries after executing his will and does not provide for his spouse, the surviving spouse is entitled to a share equal to the share she would have received had the decedent died without a will. This is another situation in which a will is changed by operation of law, and not by any act of the testator.

Benefits of Having a Will

Irrespective of the primary means by which assets are disposed of at the time of death (e.g., will, living trust, joint tenancy, etc.), a validly executed will has a place in almost every estate plan. If the will is the instrument by which all or part of the assets will be disposed of, then its importance is primary in the estate plan. However, even in a case where a living trust or some other will-substitute is used to dispose of property, a will is still valuable to enable the testator to use a separate writing for tangible personal property, to give funeral and burial directions, and to nominate a guardian for minor children. In cases where a living trust has been prepared, a will ensures that any assets outside the trust at the testator’s death are poured over to the trust.