One of the very last steps in the estate planning process is actually signing the documents. By the time you are ready to sign, you have already done the hardest parts of estate planning. You have met with an attorney, decided who should act in what role, determined who should get what stuff, and read and reviewed draft documents. While it seems like the hardest parts of estate planning are already behind you, some clients get stuck on this step for a variety of reasons. Some clients are worried they may change their mind and don’t want to sign just in case they do. Some clients live far away and can’t come in person. Below, I have outlined some of the most common questions we get about signing estate planning documents.
Can I change my mind later?
Short answer: Usually, yes.
Long answer: Sometimes, clients fear that they might change their mind about their estate plan later. This fear causes the client to hold back from signing their documents. After all, who knows what the future holds? Perhaps in 5 years, the person you have nominated to be your personal representative, agent, or trustee won’t be in your life anymore. Or, maybe one of your grandchildren will win the lottery and not need their distribution. Maybe you’ll decide you want everything to go to charity instead or the loved one you have centered your plan around will predecease you.
While you should be confident that the documents you are signing reflect your wishes, when life circumstances change, your documents can too. So long as you have capacity, you can update your wills, powers of attorney and revocable trust. If you do change your mind, you should consult with an estate planning attorney about the changes you want to make. A DIY approach to changing your estate plans is not a good idea. But know, that signing your estate plan usually does not mean that you have to keep that same estate plan forever.
Do I have to sign my will in person?
Short answer: If you are signing at our office, you do.
Long answer: Aside from a few exceptions, in Arizona, a paper will needs to be (1) in writing, (2) signed by the testator (or in the testator’s name in the testator’s conscious presence and at their direction), and (3) signed by at least two witnesses. A.R.S. 14-2502. The witnesses need to sign within a reasonable time after the testator has signed and has to be present when the testator actually signs the will. Because of these requirements, it is important that we see you in person to sign your will.
More generally, Arizona law does also allow for electronic wills, signed using electronic signatures, that meet specific requirements. An electronic will must be created and maintained in an electronic record that is readable at the time of signing. It must contain the electronic signature of the testator and contain the electronic signatures of at least two witnesses. The witnesses much be physically present or electronically present with the testator while the testator signs and must acknowledge that signature a reasonable amount of time after. The witnesses must be in the United States while serving as a witnesses. Each signature on the will must be dated and the will must contain a copy of a current, government issued I.D. card of the testator. A.R.S. 14-2518.
Can my agent (on my power of attorney) sign my will for me?
Short Answer: no.
Long answer: Your agent cannot sign your will for you. Often times, powers of attorney give agents very broad, sweeping powers to handle a wide variety of tasks. These tasks do not include altering or amending your will. The powers granted just don’t extend that far.
However, just because a power of attorney cannot be used to sign a new will on your behalf, does not mean that they have no influence on where your assets may end up at the end of your life. Some general durable powers of attorney may allow an agent to amend a trust document on behalf of a principal. They may also allow an agent to make lifetime gifts using the principal’s assets or to sign a deed gifting away a house on behalf of the principal. While a power of attorney may only give an agent authority during your lifetime, the actions taken by an agent may have consequences for your distributions later on.
Do I have to have an ID?
Short answer: Yes.
Long answer: The notary needs a currently effective government I.D. to verify your identity when you sign. The I.D. cannot be expired. Drivers licenses are the most common forms of I.D. we see. But, if you are not driving, you can also get a state issued I.D. from the department of motor vehicles.
What if I can’t physically sign my will?
Short answer: Your estate planning attorney can help you.
Long Answer: From time to time, a client will come in who lacks the physical capacity to sign. They have the mental competency to sign their estate planning documents, but, for whatever reason, they are unable to sign or hold a pen. There are solutions to this issue. Another person can “in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction.” A.R.S. 14-2502(A)(2). We also often use a special signing block.
Can my family sign as witnesses on my will?
Short answer: No and neither can any of your friends- or at least ones that you plan on leaving something to.
Long answer: Under Arizona Law, a person may not act as a witness to a will if that person is a devisee under that will or is related by blood, marriage or adoption to a devisee under that will. A devisee is a person who is designated in the will to receive a devise. It also includes anyone who is a beneficiary of a trust that is designated in the will to receive a devise. A.R.S. 14-2505.
If that eliminates a lot of people in your life, don’t worry about it. When you book a signing appointment with us, we provide the witnesses and the notary public necessary to sign any and all of your estate planning documents.
