You may have wondered whether it is really necessary to have an attorney draft your will, or if you, like Franklin, can just write out on paper who you would like to receive your property when you pass away. About one half of the states allow a handwritten, or holographic, will as long as it meets certain requirements. But even if a handwritten will is legal, is it wise to rely on one?
What Is Required for a Handwritten Will to Be Legally Recognized?
Typically, a typed-out will is valid if it is : (1) in writing; (2) signed by the testator, i.e., the person making the will; and (3) signed by at least two witnesses who saw the testator sign the will or acknowledge the signature on the will. In contrast, in the states that recognize a handwritten or holographic will, it will be valid if the important or material parts of the will are in the testator’s handwriting (i.e., not typed out) and it is signed by the testator, even if it is not witnessed. Some states also require a handwritten will to be dated, and others require clear and convincing evidence that the testator intended the document to be a will and not just notes about what he or she would have liked to include in a will. Still, others require witnesses to establish that the handwriting and signature are, in fact, those of the testator. In all instances—for a written or hand-written will—the testator must have testamentary capacity (i.e., the mental capacity to sign the will, including knowledge of what they owned and who their family members and beneficiaries were) and testamentary intent (i.e., the knowledge that what they were signing a document intended to be a will).
Is a Handwritten Will Really Easier and Less Expensive?
At first glance, it may appear that a handwritten will is the easiest and cheapest way to dispose of your money and possessions when you pass away. However, this may not be the case for several reasons:
- Lengthy and expensive probate process. Like other wills, a handwritten will must be admitted to and accepted by the probate court after death before it takes effect. Although you may save the initial legal fees of having an estate planning attorney draft a will and/or trust, handwritten wills are notorious for resulting in complicated, expensive, and public probate proceedings and legal challenges—just as in the case of Aretha Franklin’s handwritten will. There may be questions about whether the handwritten document was intended to be a will or if it was just your thoughts about what you ultimately would like to include in a will. Also, although what you write in your will may seem very clear to you, others may not understand what you intended. In addition, some heirs may question whether the handwriting is actually yours—meaning that witnesses or even a handwriting expert must be called to verify it. This will cost extra money and time.
Having an experienced estate planning attorney draft a will that is properly executed (i.e., signed by you and witnessed by others) will facilitate a smoother probate process, avoiding the unnecessary expenses that so often arise when a will is handwritten. Further, the probate process can be avoided altogether if you create a trust. When you create a revocable living trust, you transfer your money and property to the trust for the benefit of beneficiaries you choose. Because the trust owns your property at your death, probate is not required to transfer ownership to your beneficiaries when you die. A trustee that you select will manage the property and funds you place in the trust and will transfer them to your beneficiaries in the way you have directed without court involvement or delays.
- Inadequate expression of intentions. Many people know who they would like to receive certain items, but they may not know the best way to clearly express it so that it will hold up in the probate proceeding. They also may not think of everything that the will should address: For example, who will care for your children if something happens to you, or what will happen if the person your will names to receive your property dies at the same time or before you? What will happen to the money or property you have set aside for your children if you die when your children are still minors? These are only a few of the issues that an experienced attorney can help you address in a professionally drafted will or trust.
- Moving to a state that does not recognize handwritten wills. If there is a chance you may move, it is important to remember that about half of the states do not allow handwritten wills. A few will recognize a handwritten will that is legally valid in the state in which it was made, but most will not. If you relocate to one of these states and do not have a will that is valid in that state, it will be the same as if you had died without a will. Your money and property will go to the heirs specified by the state’s “intestacy” laws—which may not be the people you would have chosen.
A handwritten will may appear to be the easiest and least costly way to make sure the people you want to have your money and property when you pass away receive it. It may indeed be easier and cheaper for you—but not necessarily for your family members and loved ones. Instead, it may result in months or even years of court proceedings, will contests, and damage to family relationships. We can help you draft a will or trust that will ensure that your wishes are fulfilled and prevent unnecessary stress for your grieving family and loved ones. Please call us today to set up a meeting so we can create an estate plan that will address all of your goals.