Common Problems with DIY Wills
Arizona Wills
Although there are numerous problems that can occur when someone drafts his/her own Will or Trust, I’m going to focus on the problems I’ve seen for myself here in Arizona. People use a variety of DIY estate planning tools, such as software, books, free templates found online, or websites that offer templates at low prices. When using these services, it’s important to keep in mind that each state has its own unique laws or statutes regarding Wills and Trusts.
Unclear Terms and Language
A common problem I’ve seen is ambiguity. This can include unclear language regarding the nomination of personal representatives or beneficiaries, or an unclear description of a specific gift. For example, one of my clients had a will that listed him as the “1st Beneficiary” who was to inherit everything in the estate, and his daughter as the “2nd Beneficiary” who was also named to inherit everything in the estate. It’s impossible for two beneficiaries (a.k.a. devisees) to receive 100% of the estate at the same time. My client believed that his mother meant to leave everything to him, and his daughter was meant to be the contingent beneficiary, meaning if he died before his mother, his daughter would inherit everything. But his daughter saw it differently. She believed that her grandmother meant to have the two beneficiaries split her estate 50/50. This disagreement led to litigation, which involved formal probate, attorneys, and hearings. So, what started as an inexpensive informal probate turned into a more expensive and time-consuming formal probate, which could have been avoided by simply making the testator’s wishes clear in her final Will.
Improper Execution
Another problem I’ve seen with DIY Wills is improper execution or signing of the Will. In one case the Will had to go through formal probate because the testator (the person creating the Will) signed the Will using her fingerprint. There are occasions where a testator is physically unable to sign documents. A.R.S. §14-2502(A)(2) provides a legal option for such circumstances. According to this statute, you can direct someone else to sign your Will on your behalf, in your presence.
Unless it meets the specific requirements found in the Arizona Revised Statutes, an Arizona Will should be signed by two witnesses. The witness portion of A.R.S. §14-2502 has its own set of criteria that must be met. The witness requirements are further described in A.R.S. §14-2505, and they include:
- A witness must be a competent adult.
- Unless the Will is self-proved, a witness should NOT be:
- someone who will inherit something under your Will (a devisee); or
- someone who is related by blood, marriage, or adoption to you or to one of the devisees of your Will.
For this statute, the term “devisee” means a person who is designated to receive something under the Will, or who is a beneficiary of a Trust that is designated to receive something under the Will.
Coercion, Undue Influence, and Incapacity
The execution of your Will becomes key if anyone contests your Will after you die. As an example, if you had someone act as a witness to the signing of your Will who is set to inherit 50% of your estate, this may appear to give that witness the motive for coercion or undue influence. The witnesses who signed your Will may also be important when trying to prove that you had the mental capacity to understand what you were signing. If the witness to the signing of your Will is also a beneficiary, that may appear to be a motive for the witness to say that you had capacity, even if you did not. In other words, your goal is to avoid even the appearance of impropriety, coercion, undue influence, or the possibility of incapacity at the time of signing.
If a Will is improperly executed, it may require the filing of a more costly and time-consuming formal probate. Improper execution may ultimately lead to the Court determining that your Will is not valid.
Inexpensive Wills and Trusts
If you are looking for an inexpensive way to obtain a Will, Trust, or other estate planning documents without doing it on your own, Arizona Probate, LLC might be a good fit for you. Check out our flat rates and affordable services by going to our Services page. You can click on some of the services for further details or request a free consultation by clicking on the following link: Contact Arizona Probate, LLC.
The sole owner and operator of Arizona Probate, LLC, Julie Ruetz, is also an Arizona Licensed Fiduciary who can act as a trustee, personal representative, conservator, guardian, or agent under a POA. Call for further information: (520) 252-6726.
The information on this website is for informational purposes only and should not be construed as legal advice.
