Will Requirements - A Primer for Perilous Times
THE COUNSELOR
Volume 10 • Issue 4 • April 2020
The Counselor is a monthly newsletter of Hallock & Hallock dedicated to providing useful information on estate planning, business succession planning and charitable planning issues. This month's issue will discuss the requirements to create a will. If you are interested in learning more about the ideas and processes discussed in this newsletter, please contact us for an initial consultation.
In these perilous times of the COVID-19 pandemic, some may be wondering whether they should create a will. While it is always recommended that you seek competent legal counsel when creating such important documents, in times of quarantine that may not be possible for you. Therefore, this month’s newsletter is meant to give you some basic information in case you need to try and do it yourself.
The first important thing to remember is that each state can be a little bit different in its requirements. At Hallock & Hallock, we are licensed to practice law in three different states: Arizona, Idaho, and Utah. This article will focus on the requirements of those three states. Even though each of those states has adopted the Uniform Probate Code, each state’s version of that code provides nuance that should be adhered to. Remember, before trying to make your own will, you should take the time to understand the requirements of the state you live in.
Who Can Create A Will?
All three states provide that an individual who is 18 years of age or older and is of sound mind can create a will. Idaho goes one step further and states that any emancipated minor can also make a will. In a throwback to earlier times, Idaho also clarifies that a married woman may dispose of her property by will.
Requirements of a Will
Idaho and Utah require that the will must be in writing. Arizona distinguishes between a paper writing and an electronic will and provides that the paper will must be in writing. This means oral wills are not generally acceptable. The person creating the will is referred to as the Testator. All three states provide that the will can either be signed by the Testator or in the Testator's name by another person in the Testator's presence and under the Testator's direction. In addition to the Testator’s signature, the will must be signed by at least two individuals, each of whom either witnessed the signing of the will or the Testator's acknowledgment of that signature or acknowledgment of the will. Utah and Arizona require those signatures to be within a reasonable time after the Testator signed the will.
Utah and Arizona provide that an individual generally competent to be a witness may act as a witness to a will. Idaho adds the additional requirement that the person be at least 18 years old. Utah and Idaho do not disqualify a witness because the witness is a beneficiary under the will. Arizona, on the other hand, prohibits a person from being a witness to a will if that person is a beneficiary or is related by blood, marriage or adoption to a beneficiary under that will, unless it is self-proved. Beneficiaries include beneficiaries of trusts that are named as a beneficiary of the will. A self-proved will is generally one that is acknowledged before a notary public. Therefore, while a notary can be helpful, and is generally recommended, it is not necessary. So in times like these, when a notary may be hard to come by, know that it is not necessary for a will to be notarized - at least in these three states.
In all three states, a will can incorporate other documents by reference. However, those documents must be in existence at the time the will is created.
Electronic Wills
More and more states are starting to enact laws relating to the creation of electronic wills. While Arizona has enacted such a law, Utah and Idaho have yet to do so. The Arizona electronic will law requires that the will be created and maintained in an electronic record. The will must contain the electronic signature of the Testator or the Testator's electronic signature made by some other individual in the Testator's conscious presence and by the Testator's direction. The electronic will must contain the electronic signatures of at least two persons, each of whom (1) was physically present with the testator when the testator electronically signed the will, acknowledged the testator's signature or acknowledged the will, and (2) electronically signed the will within a reasonable time after the person witnessed the Testator signing the will, acknowledging the testator's signature or acknowledging the will. The will must state the date that the Testator and each of the witnesses electronically signed the will and contain a copy of a government-issued identification card of the testator that was current at the time of execution of the will.
To be self-proved, an electronic will must contain the electronic signature and electronic seal of a notary public placed on the will in accordance with applicable law. In addition, the will must designate a qualified custodian (as set forth in the statute) to maintain custody of the electronic will and before being offered for probate or being reduced to a certified paper original, be under the exclusive control of a qualified custodian at all times.
Holographic Wills
All three states provide for what are known as holographic wills. This is a will that does not comply with the requirements of a will set forth above, but the signature and material portions of the document are in the Testator's handwriting. While there are cases out there where wills have been declared valid that weren’t entirely in the Testator’s handwriting, if you are trying to put a temporary fix in place until things calm down and you can get with your attorney, it is best if it is all in your handwriting.
As you can see, there are specific requirements to create a will. And even though each of these states has adopted the same uniform law, they have each made their own adjustments to that law. Because the decisions you make can have unintended consequences, we always recommend having competent legal counsel that understands the laws of your state, assist you in creating your will. However, in these challenging times if you are unable to get with such an attorney, know that you can still put in place a temporary solution in the form of a holographic will. Here is a video to provide a little more information on this topic.
At Hallock & Hallock, we are continuing to help our clients through these difficult times. If you would like to get your estate planning in place and would like our assistance please don’t hesitate to contact us. While we cannot meet with you in person, we are able to meet with you remotely by video conference.
Stay healthy and stay safe.
This Newsletter is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to any particular issue or problem. Nothing herein creates an attorney-client relationship between Hallock & Hallock and the reader.