Have you written a will? If not, it may surprise you how many other people are like you. Research shows that up to 68% of Americans do not have this relevant document. The law refers to this as intestate or dying without having left behind a legal will. Your family or anyone who wants a share of your property must wait for the probate court decision.
Court administrators will compile your assets. They will then take care of any liabilities or debts you have left behind. Only after this do the beneficiaries receive the rest of the assets.
A question that may arise for some people is whether you must hire wills lawyers. Can’t you just handwrite your own will?
To answer the handwritten will question above, the answer is yes. It is possible to handwrite your own will at home.
Under the law, there is a provision for holographic wills. This refers to an unattested will that is in the testator’s handwriting. No one witnesses or notarizes the holographic will. Any typewritten words on the holographic mustn’t interfere with the handwritten meaning.
The holographic will is valid even if found amongst the deceased’s personal effects. They could have also given it to someone for safe custody. It could also be with a corporation or firm that the testator trusted to safeguard the will.
At this point, it may sound like a pretty easy and convenient option to take. You can jot down your list of assets, share them amongst your beneficiaries and sign the document. We don’t disagree with the veracity of the thinking. But, we do advise against taking this path of least resistance.
Writing your last testament is not that simple. If you do not follow legal requirements, it could result in an invalid will. The best people to approach for help are expert last wills lawyers. They will ensure proper drafting and execution of the document.
The Wills Act of 1837 lays down some rules for writing holographic wills.
- There should be two witnesses who, in the presence of the testator, sign the will.
- The testator must sign the will. Otherwise, it points to an error in execution, rendering it invalid.
- Changes to the law allow for remote witnessing via video conferencing tools.
- There must also be proof of intention. The testator may have simply been jotting down thoughts on how to divide his property. There must be a fixed and final deliberate expression of intent about the property disposal.
- The exclusion of some assets can confuse the beneficiaries.
- The testator must have ‘testamentary capacity’. That means full knowledge of what they were doing and the attendant implications. The person writing the will must be above 18 years with full mental acuity. Someone could challenge the will if there is any doubt about that capacity.
- There should be no ambiguity. The language must be clear with the correct use of terminology. Take the example of writing ‘I leave all my assets to my wife.” Now, let’s say you were previously married, but you got separated. But, you did not go through a divorce, meaning you are still legally married.
In the meantime, you found another lady and made her your wife. You did this without full disclosure of the existing previous relationship. Legally, the law would not recognize a second marriage. At your death, the first wife returns and demands a share of the property.
Since there was a lack of clarity on which wife you were referring to, she could win the case. Your ignorance of legal language thus becomes an issue. You should have put the second wife’s name in full.
We go back to our point of hiring wills lawyers. They can clear up such ambiguities. It will help guard against future misinterpretation of the testator’s true intentions.
Before writing your holographic will, find out if your state allows it. You can handwrite your own will in Alaska, Arkansas, Michigan, Maine, Mississippi, North Dakota, Nebraska, and Nevada. New Jersey, Pennsylvania, Tennessee, West Virginia, and Wyoming are other places.
The states that do not accept handwritten wills are Alabama, Kansas, Rhode Island, and Wisconsin. The others are Georgia, Illinois, Delaware, Missouri, Vermont, and Iowa.
Please note the lists are not exhaustive. So, take time to find out what applies in your state. The wills lawyer can also advise you on the same.
The challenge of an invalid will is that it can result in lengthy court cases if there is a dispute. Indeed such battles can drag on for years. In the end, what remains of the estate will have significantly lost value.
Let us start by being clear on our stand. It is never a good idea to pen your own will without help from an estate planning or will lawyer. The repercussions of a poorly executed will are many. Confusion, legal battles, and lengthy and expensive court cases are some unpleasant consequences.
But, you can write your will under the following conditions.
- Where the assets are pretty clear to see and do not have any complications around them
- If you are leaving everything to one beneficiary, say your spouse or children
- If all your assets are local, meaning there is none abroad. And that includes foreign bank accounts or investments
- If the assets are not business related. Leaving a company to a beneficiary, for example, comes with many complexities. In that case, a wills lawyer would be the best option for handling the drafting of the will
- If you don’t have other dependents apart from your family
Please make sure you destroy any wills you may have previously written. If there is any doubt about the validity of your handwritten will, the court will revert to the previous one.
Do not leave your beneficiaries squabbling about your property when you pass on. Writing a will provides a fantastic solution to asset distribution. While holographic wills are an option in some states, they may not be the best option.
We have shared why in our article above. Even if you decide to go that route, let a wills lawyer go through the document on your behalf. It could save everyone so much heartache in the future.