Who needs a Will?
Everyone needs to have a Last Will and Testament, which is the long way of saying a Will at your death. Problems arise if you don’t know how to format for your last will and testament. The rules are long, and it is very easy to get them wrong.
I know this because over the years my clients have tried to use Wills for friends and family members after death. Most of the time, the court won’t accept the document because the format of the last will and testament fails.
Using a Will
In order to use a Will, the document needs to be presented to the court. A Will is really your key to the probate court. There are many ways to avoid probate. Having a Will means you need to work with the probate court to get the Will admitted and approved of by the Court. The Court I am talking about is the Court in the county where the deceased lived at the time of death.
Problems arise when the court rejects the Will. If the court rejects the Will, then we go back to the heirs listed in the statutes. NOT the heirs listed in the Will. A court can reject a Will for many, many reasons. Let’s talk about just a few.
A will must be written and signed correctly. The three most important reasons are 1. The document is damaged in some way. 2. The document looks like a photocopy. 3. The document doesn’t have all the information that the statute, and thus the court, needs.
The document is damaged is probably the most common reason for rejection. Damage to a court is different than damage to you or me. If the Will has been stapled, and unstapled and stapled again, the court could believe that pages have been taken out or changed. They are right. There is a tremendous amount of fraud today and the people who commit the fraud are usually the closest friends and family members of the deceased.
Another type of damage is changes written on the document. If the deceased wanted Child A to get the money, then changed his mind, and changed the document to read Girlfriend B, the document is damaged. The court won’t accept any changes written on a Will. It doesn’t matter if the changes are initialed, notarized or left alone, the court doesn’t know if the deceased really wanted those changes. The only way to make a change is to amend the Will with a Codicil (Will Amendment) or write up a new one. I always write a new one.
Photocopies won’t work because only an original will be approved by the court. The court never knows what the deceased wanted until they see an original document. For all they know the deceased ripped up the original will. Sometimes though, originals are presented to the court and the court rejects them anyway.
The reason the court rejects originals which look like photocopies is because they look too much like copies. This happens all the time. If the Will is written in black ink, and the signature is also in black ink, the supervisor has to double check that the document is not a copy. I have seen them hold the pages up to the light to try to guess. If they are not sure, because the black ink is light, the Will is going to be rejected.
Life isn’t fair.
The statutes in your state will define very clearly the format of a Last Will and Testament. If you want to try to prepare a Will yourself, get a copy of the statute and follow the rules step by step. I don’t really recommend this, because the statute is written in a language which looks a lot like English. But it is not written in English. It is written in legalese. No joke. Legalese is not English.
Its my job as a lawyer to translate what YOU want to do, into legalese, draft in legalese and translate it back to you in English. The Arizona statutes allow holographic wills.
A holographic will is a Will written by the deceased in his or her own handwriting, which is also signed and dated by the deceased. It is legal, but no useful. The reason they are not useful is because the court has difficulty knowing if the deceased wrote this document, or you did. How do we prove the deceased was the writer?
We go through an expensive formal proceeding where witnesses have to come and testify that the deceased really wrote the thing. It takes hours of attorney time. Hours of family and friend time. It also takes lots and lots of money to hire the lawyers.
If a family member doesn’t like what is written, the family member usually hires their own lawyers, and the fun is compounded by each objection.
If you want to spend less time and money during the probate process the better way is to have a lawyer prepare a Simple Will. In Arizona in order to use the simple, or informal probate process, the will has to be signed and witness in front of a Notary. This type of Will is known as a Self-Proving Will.
In my office documents are typed in black ink. Signed always in blue ink. And notarized correctly. The Will is stapled and placed in a White Will Envelope. The White Will Envelope is placed in a plastic sleeve, with a warning!
Don’t open this plastic sleeve. Don’t un-staple this Will. The plastic sleeve with the Will safely inside is brought to the court. If my clients heed my advice, we don’t have problems with damaged Wills.
The format of a Last Will and Testament, just like the format of all legal documents is complicated. We need to protect each other from fraud. We need to protect each other from theft. We need to protect our loved ones wishes. The best way to do that is with a well written Will.
Do you have a well written Last Will and Testament?