Can You Write Your Own Will? Plus, Why You Need A Will Even If You Think You Don’t
Inexpensive Will Options For Estate Planning
A last will and testament may be the least desirable conversation topic, but the fact is that a will determines what happens to all your earthly possessions and even your body upon your death. In recent chats with middle-aged friends, I learned that not one of them has a will– despite having plenty of assets. As it turns out, their situation is quite common. A recent Gallup poll finds that slightly less than half of U.S. adults, 46%, have a will to express how they want their money and estate to be handled after their death. Whether the potential cost is prohibitive or just sheer procrastination, the fact is that your estate will be distributed eventually whether you leave a will or not, so you may as well take charge of the process while you can. To remove some of the mystery and intimidation surrounding the subject, I decided to tap into my legal background to create this quick, no-nonsense primer to address why you need a will, plus whether you can, or should, write your own will. In addition, I have included resources to help you get the job done.
After all, the efforts you make planning now will pay off later, especially in the knowledge and peace of mind that your estate will be distributed in accordance with your wishes.
Now, let’s examine more in-depth why you need a will, & whether you can or should write your own. Plus, read on for resources to help you draft a valid will in your state.
***If you are interested in any related estate planning topics, such as how to ensure your pets are taken care of after you are gone, let me know in the comments and I will try to answer your question in a future post.
“Hearses don’t come with luggage racks…”
-Someone somewhere
Disclaimer:
This post is for information purposes only & not to be construed as legal advice. I encourage readers to seek out a licensed attorney in their state who can address their unique circumstances. Some links to government & state resources are provided which readers can use at their discretion. Since I am a lawyer & a member of the New York State Bar, I try to highlight legal issues that may be of interest to readers in addition to other lifestyle content.
**Note: This post contains affiliate links for which a small commission may be earned if you decide to make a purchase through a link.
Why Do I Need a Will Anyway?
Who Determines What Happens to Your Legacy
As the saying goes, “You can’t take it with you.” If you have any possessions of value, you already have one very good reason to have a will. But if you are like many Americans, there is a good chance you don’t. As stated above, slightly less than half of U.S. adults, 46%, have a will to express how they want their money and estate handled after their death. With more people than at any other time in history remaining childless yet continuing to amass assets, including increasing numbers of singles and couples, generational wealth is no longer a foregone conclusion. No children means no natural heirs to inherit your wealth. But don’t let this lead you to believe that you don’t need a will.
For example, if you have a spouse and die without a will, typically your assets pass to your surviving spouse. However, if you and your spouse die simultaneously without wills, such as in an accident, disposition of your assets gets decided by the law and your state’s probate court.
Why let such a personal decision be decided by the state? Or, for that matter, by a surviving relative who you are estranged from or who does not have your best interests at heart? This would leave your entire legacy in the wrong hands — and out of your control. Don’t leave anything to chance — make your wishes known in a will.
***Time to declutter your file cabinet? Click here for, “File Cabinet Decluttering: How Long Do I Have To Keep Old Financial Files? When To Throw Out Old Bills, What To Keep & How Long”
A Will Speaks for You When You No Longer Can – Two Major Purposes of a Will
A will has two major purposes– to state the will writer’s intentions and to appoint someone to carry them out after the will writer’s death.
What Exactly Is a Will?
A will is a legal document that takes effect upon the death of the writer of the will, aka “the testator,” to express the testator’s desires regarding the distribution of their assets, as well as directing what happens to his or her body. A will also permits a testator to name a responsible person(s) known as an executor of the will to be in charge of ensuring the testator’s wishes are carried out. If the testator has minor children, a designation in the will should also name the person(s) he or she would like to serve as their children’s guardian(s).
The Bottom-line: A Will Lets You Control Where Your Assets Go
A will lets you decide how your precious assets are distributed after you are gone and ensures your children are taken care of, while also enabling you choose a person trustworthy enough to carry out your wishes.
TIP! Can’t Decide Who Gets What? How To Avoid Hurt Feelings
Consider having a conversation with family members & friends to find out if there is anything specific they hope to inherit. You may discover that items with sentimental value are most desired rather than those with mere monetary value. Having conversations to clarify who gets what also helps avoid hurt feelings after you are gone.
If a will provides you with peace of mind that you have taken care of those that mean the most to you, what about the alternative?
What Happens If You Die Without a Will? The Law Decides
If you don’t have a will, you will be deemed to have died intestate, which is a fancy way of saying you died without a will. This means your assets will then pass according to the specific intestate laws of your state. Every state has a body of laws called intestate laws of succession which govern the distribution of an estate if you die without a will. While laws vary from state to state, the hierarchy usually starts with a surviving spouse, then any children, grandchildren, parents, siblings and so on, according to the hierarchy of each state’s law.
The Effect of Dying Without a Will…
The ultimate effect of dying without a will is that, instead of your assets being distributed according to your wishes and intent, an old dusty legal code gets to decide who gets what. I’m pretty sure you don’t want such a major decision decided in an impersonal fashion by old rules with no regard for your wishes. However, unless you express your desires in a legally-binding will, how is anyone to know your intentions?
Such a scenario could be avoided, of course, with a properly executed will.
Express Your Intentions in Your Will or Someone Else “Will”
I’m sure you want to have a say in which family member or friend inherits your prized possessions and which ones do not. Subject to your state’s laws, which sometimes allows exemptions for certain family members so they are not left “empty-handed,” a will enables you to declare where you want your property to go or not go, after you are gone. Don’t leave it to chance or to state code.
The Bottom-line:
If you have a certain heir you are estranged from and prefer to exclude from inheriting, a will gives you the best chance of doing just that, while intestate laws don’t.
TIP! Concerned About Whether Laws in Your State Allow You to Exclude Certain Relatives from Inheritance?
It’s a sad and painful reality, and hopefully you are not experiencing it, but many people these days have relatives, even including adult children, they feel estranged from. To find out your state’s specific rules on what happens if you prefer to exclude certain family members from your will, consult an experienced estate planning lawyer in your area.
What Happens If You Die Without a Will & Without Family or Relatives?
If you die without any surviving family members, guess who your estate passes to? Thats’ right, that warm, cuddly entity known as the state… Now, do you really want your property to wind up in the hands of the state? Because that is what will happen– without a will and without living relatives, your entire estate escheats, a fancy legal term for passes, to the state. The net effect is that you have forfeited any opportunity to bequeath your worldly goods to a trusted friend or a favorite charity.
Do You Love Animals, Children, The Environment or Some Other Cause or Organization? Leave Your Estate to Charity
If you have a cause, organization or special charity that is especially meaningful to you, you may want to bequeath some or all of your estate for their benefit.
TIP! If You Plan to Donate Any Portion of Your Property to Charity…
Make sure to contact the charity ahead of time to see what arrangements need to be made. Also, consider having one or two back-up charities in your will in case your first choice is no longer operating.
The Bottom-line: Not Having Immediate Family Is No Excuse Not Have a Will
Don’t miss out on the opportunity to donate to those who have made a difference in your life or to causes near and dear to your heart. A properly executed will allows you to do just that by designating special friends or a favorite charitable organization as your beneficiaries.
What Happens If You Die & It Is Determined Your Will Is Not Valid?
If you die without a validly executed will, meaning that your will fails to comply with your state’s legal requirements, unfortunately, your estate is treated as if you died without any will at all. Again, this means your estate will be disposed of according to the intestate laws in your particular state, not your intentions. Once again, this takes away your power and control to determine what happens to your property. No bueno….
The Bottom-line: A Validly Executed Will Is Essential
So, now you know that a validly executed will is crucial to your estate plan and peace of mind, but can write your own will?
Can You Write Your Own Will?
While much depends on the laws of your state, in general, it is acceptable to write your own handwritten will without a lawyer. However, there is a catch– the will must comply with the legal requirements of your state to be considered legally valid. These requirements vary from state to state, but they can often be found online, and I will show you how to locate them later in this article.
Should You Write Your Own Will? For DIY Wills, Keep It Simple, Not Complex
While you may be able to draft your own will, whether you should is a separate issue. One thing is certain is that you should only do so if you have a fairly small estate that requires a simple will.
What If You Have a Larger Estate?
Complications can arise if your estate is larger and more complex. If you have more than a few assets, speaking with a licensed estate planning attorney is your best bet.
Make Sure You Know & Follow Your State’s Formal Will Requirements
As I stated above, if you do write your own will, it is crucial that you follow your state’s formal requirements. If your will fails to comply, it will not be recognized by the court and your property can be distributed as if you had no will at all.
If you have a simple estate & are considering drafting your own will, read on to learn how you can make sure your will meets the legal requirements of your state…
What Is Considered a Handwritten Will?
Most states require a will to be in some form of writing, as opposed to oral. But don’t take any chances… a handwritten will still needs to be properly executed, following your state’s formalities, to be upheld by probate courts.
TIP! While properly executed handwritten wills may be valid, a will that is typed is an even better option because it avoids forcing a judge to interpret the testator’s handwriting.
Types Of Handwritten Wills
There are two basic types of handwritten wills. There is also a third state-approved template option available in some states that is known as a statutory will. A fourth DIY option has been introduced thanks to online legal document repository websites like LegalZoom.com and eForms.com. These online legal document libraries aim to make creating your own will more convenient and accessible than ever. However, let’s look at the pros and cons of the different types of DIY wills because there are a few…
1. Holographic Wills – Wills Written Without Legal Formalities & Which Should Be Avoided
The most basic handwritten will is one in which the testator writes on a piece of paper what he or she wants to happen to their property after their death. They then sign it at the bottom. This is about as basic as it gets and this sort of will, handwritten without any attesting witnesses, is known by the legal term “holographic will.”
Not surprisingly, holographic wills are not recognized in many states except in very limited exceptions, and often for a limited time period. Needless to say, holographic wills are not the best choice. Now, for the better handwritten option…
2. Handwritten Plus Formalities
States, including New York and Florida, require handwritten wills to meet certain formalities to be considered valid, usually including being signed in the presence of two attesting witnesses. When handwritten wills are executed with these proper formalities, they are no longer considered “holographic wills” and will generally be recognized by the courts if they meet all other requirements.
So, how do you know what requirements or formalities your state requires? Scroll down to, “Does Your State Permit You to Write Your Own Will? How to Find Out Your State’s Will Requirements…”
3. Statutory Wills
The third handwritten option, a statutory will, is a free will template created by a state’s legislature that is designed to comply with the language of the particular state’s laws. A testator has to essentially “fill in the blanks” about themselves and their property in the simple standardized form that does not allow for any customization. While you can do a search to see if they are available where you live, unfortunately, statutory wills are only offered by a handful of states.
What States Offer Statutory Wills?
Although statutory wills are a free, easy way to streamline the estate planning process and create a legally binding will, they are only available in a few states, including California, Maine, New Mexico, Michigan and Wisconsin.
In What Circumstances Is a Statutory Will Appropriate? Or Not Appropriate?
The “one size fits all” nature of statutory wills means they can only accommodate small estates, not large ones. Why? Statutory wills should not be amended. Changing or modifying a statutory will, including cross-outs or additions, can invalidate the entire will. Thus, for a larger estate that requires customized language, contact a licensed attorney in your area to draft a regular will.
TIP! Even if you cannot use a statutory will in your state, you can take a look at a copy to get an idea of what to include in your own will. See the link below for the California Statutory Will template…
If you are a resident of California, you can obtain the California Statutory Will Form here…
Don’t want to write your own will, but looking for an alternative to costly legal services? Consider…
4. Online Legal Document Repository Websites For Will Templates
Online legal form repositories or libraries are one more alternative to expensive legal services. Similar to templates for statutory wills as discussed above, but unlike statutory wills, these wills are not created by state legislatures and are not free. Online legal document libraries offer a convenience factor in the form of fillable and printable electronic testamentary (will) template forms for each state. However, the convenience does come at the expense of missing out on the expertise of having your own legal professional draft the document.
Remember: Payment is required to fully utilize online electronic legal document services, which may result in a cost that is not much less expensive than hiring your own lawyer.
Another Online Alternative to Make Writing Your Own Will Easy….
with this user-friendly & comprehensive estate planning kit…So, Can You Write Your Own Will? How To Find Out Your State’s Will Requirements
Now we know that, while handwritten wills may be acceptable, they still must meet formal state requirements such as being signed in front of two attesting witnesses. To make sure your DIY will complies with the laws of your state, search your state’s wills and estates code.
How Can You Locate Your State’s Estate Code? Search Online
As I mentioned above, each state has its own set of rules for wills and estate planning, and these rules or regulations are typically codified in a state’s wills and estate planning code. Therefore, your first step is do a search to find the codified will execution requirements or formalities in your state.
New York & Florida State Code Examples
I have included links below to both the New York and Florida codes and will requirements in case you are interested in seeing what they look like in these states:
For New York Will Requirements:
In New York, the Estates, Powers, and Trusts Law (“EPTL”) governs estates and trusts law in New York.
For New York will requirements, see NY EPTL section 3-2.1.
Online Will Witnessing & Notarization Requirements | NYC Bar
For Florida Will Requirements:
For Florida will requirements, see Part V of Chapter 32 of the Florida Statutes.
Bottom-line:
Now that you know what to look for, you can look up your state’s code and search will execution requirements to ensure your will is in compliance.
Conclusion: Can You Write Your Own Will? Why You Need a Will– Follow These Tips to Start Estate Planning Now
I hope these tips have given you the knowledge and motivation to help you get started with estate planning. Now you know that, not only do you need a will as part of your basic estate plan, but you know the options for drafting one, plus the steps to make sure it gets done right. While the subject is one no one wants to think about, efforts undertaken now will pay off later, particularly in the knowledge and peace of mind that your estate is distributed in accordance with your wishes.
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Do you have questions or concerns about any related estate planning topics, such as how to provide for your pets so they are taken care of..? Let me know in the comments and I will try to answer popular questions in future posts!
