In the state of Arizona, the interested parties to a decedent’s estate have up to two years from the date of death or up to one year after probate is closed (whichever comes first) to file a will contest. In the ideal scenario, it’s best to contest the will before probate is granted or within the first four months of probate. After that, it becomes increasingly difficult to successfully contest the will once estate assets are distributed.
There is, however, one notable exception to the statute of limitations on will contests in Arizona. The time limits described above apply when the probate process is informal—that is, when there are no contests to the will or objections to the actions of the personal representative. If there are will contests or objections, the probate proceedings are recharacterized as formal probate and require greater involvement from a probate judge. When a judge closes an estate in formal probate, the decision is binding and the statute of limitations for will contests immediately expires.
Contesting a will
While it’s common for there to be unhappy parties to a will or estate, you can’t contest the distribution of an estate simply because you’re upset with the will. The courts view a decedent’s will as a voice beyond the grave, so judges are understandably reluctant to invalidate a will when it means distributing assets in a manner that’s contrary to that voice beyond the grave.
As such, there are only a handful of circumstances that warrant invalidating a will, and it can be quite difficult to successfully challenge a will. It’s certainly not a DIY endeavor—to successfully contest a will, you’ll need an experienced attorney, a valid reason, and evidence to back your claim.
Generally speaking, there are six circumstances under which you can contest a will:
The testator was a minor
Minors cannot own or assign property, so anyone under age 18 cannot draft a will. This is relatively simple to prove, though it’s pretty rare for a minor to attempt to draft a will.
The testator lacked testamentary capacity
To draft a will, the testator must possess sufficient mental capacity to understand the consequences of their actions. At a minimum, the testator must understand (1) what a will means, (2) the extent and value of the property, (3) who he or she is expected to provide for, (4) who the beneficiaries are, (5) the disposition of his or her property, and (6) how all of these elements relate in order to form a distribution of property. Cases that challenge a testator’s mental capacity usually involve allegations of dementia, senility, insanity, or substance abuse. To prove that the testator was mentally incapacitated at the time the will was drafted, you’ll need expert certification from a physician or psychologist.
The will was subject to undue influence, forgery, or fraud
While wills that are fraudulently drafted or forged are pretty self-explanatory, the term “undue influence” is a bit of a grey area. In theory, undue influence exists when a manipulator takes away the testator’s free will to bargain when it comes to bequeathing their assets.
In practice, it can be difficult to prove the difference between undue influence and a beneficiary who successfully lobbied for a larger inheritance. It’s certainly a red flag when there are conflicting versions of the will, or when one or more beneficiaries are disinherited for unknown reasons. In successful will contests, this issue often goes hand-in-hand with proving the testator lacked testamentary capacity due to senility, dementia, or insanity.
There is a superseding version of the will
There’s a reason your will is referred to as your last will and testament—the document needs to be your last word on the subject. Anytime you draft a new will, any previous versions of your will are automatically invalidated. As such, you can successfully contest a will that has been accepted by the probate court if you’re able to present a newer version of the will that was signed after the previously accepted version. This also applies to amendments and addendums to a will.
If you present the court with a valid amendment or addendum that was signed after the original document, the new provisions in the amendment or addendum will supersede the applicable provisions in the original will.
There aren’t enough witnesses
Arizona law dictates that typed wills require two witnesses. While there are some states that don’t allow beneficiaries to serve as witnesses, Arizona allows the practice of using interested witnesses. The witnesses don’t need to have their signatures notarized, but the state does offer preferential treatment for self-proved wills that are notarized (notably, the witnesses won’t need to appear in court to validate the will). If the will is handwritten (referred to as a holographic will), the state doesn’t require any witnesses.
The will is improperly drafted or signed
For typed wills, the testator can personally sign the will or have someone sign the will under their direction (ARS 14-2502). For holographic wills, the signature and the material provisions of the will must match the testator’s handwriting. In either case, the signature does not need to be notarized.
Keep in mind that only interested parties to the estate may contest the will. Interested parties include designated beneficiaries, disinherited beneficiaries, legal heirs (those who would normally receive assets under state intestacy laws), spouses, children, and creditors.
When someone dies without a will, they die “intestate.” Their assets are distributed according to the state’s intestacy laws, and the estate’s interested parties have little to no say over the distribution of property.
When a probate judge invalidates a will—whether it’s the entire document or select provisions—the associated assets in the decedent’s estate are essentially viewed as if they were never disposed of by will. As such, these assets are considered intestate, and will be distributed according to the state’s intestacy laws.
In Arizona, intestate succession tends to favor the spouse and children. If the decedent had a spouse and either didn’t have any children or only had children with that spouse, then the spouse would receive the intestate estate. If the decedent had a spouse but had children with another partner, then the spouse would receive half of the intestate estate, with the other half split equally among the children from the separate relationship. If the decedent didn’t have a spouse, the intestate estate would be distributed to legal heirs in the following order:
- To the decedent’s descendants by representation
- To the decedent’s parents
- To the decedent’s siblings by representation
- To the decedent’s grandparents by representation
- To the state
Do You Need Help with Probate Matters?
As you can see, AZ probate laws can be complex. It requires a number of steps and without the right approach, it’s easy to get lost in the details.
At JacksonWhite, we can make probate a clear, easy-to-understand process. If you’d like help with probate matters, call the talented team at JacksonWhite Law today.
We can help explain your legal options and direct you to the probate solution that works for you and your loved ones.