A handwritten Will, also known as a “holographic will,” is a valid method for expressing your last wishes as to whom you desire to inherit from you. Many people choose to write their own Wills to save the expense of hiring an attorney. Others think their estate is too small to warrant getting a legal professional’s assistance. Regardless of the reason for choosing to handwrite your Will, you should be aware of the pitfalls of this method. It might just save you from making a mistake that can be expensive and painful for your loved ones to deal with upon your death. After all, you will not be there to clarify the confusing provision or correct the mistake once the handwritten Will is probated. Here are the top five mistakes to avoid if you are considering handwriting a Will.
1. Using an Online Form
The fill-in-the-blank Will form you found online is a major source of Will Contests. While the form may work for you, there is a high-risk for confusion or improper execution that would cause it to be deemed invalid. For a handwritten Will to be valid and enforceable, all of the material provisions must be in your own handwriting. Nothing should be typed or written in another person’s handwriting. While your family may honor the wishes you express in the fill-in-the-blank form, it only takes one person’s objection to cause major problems. Also, the form may have confusing legal language in it that could cause unintended consequences. It is always best to have an attorney draft your Will to ensure your last wishes are properly carried out. However, if you insist on using an online form, at least take the time to write it all out on a separate document completely in your own handwriting.
2. Leaving Assets Out of the Will
Did you really mean for your least favorite nephew to get a share of your estate? If not, then you must be sure to properly describe how you want all of your assets distributed in your handwritten Will. It is common practice for attorneys to draft a “residue clause” which states that any asset not specifically mentioned in the Will is to go to the person’s spouse, for example. This way even the leftover, unmentioned assets of the estate, i.e. the residue, are properly disbursed upon death. Many people handwriting their own Wills neglect to do this and they die partially intestate, which is to say, that the assets not specifically mentioned or left under a residue clause pass to the person’s heirs as defined by the State. Most handwritten Wills are composed well enough that a family heirloom is described with enough specificity that the person for whom it is meant actually receives it upon the writer’s death. However, it is the items that are not specifically spelled out in handwritten Wills that create problems.
3. Giving Away the Same Asset Twice!
All too often in handwritten Wills a person designates a set amount of money to a friend or family member, only for that beneficiary to learn that there is not enough money to pay the bequest. The problem stems from a misperception about which assets are available to pass under a Will in the first place. For instance, if you have a savings account with $10,000.00 that you want to go to a close friend, then you must make sure that $10,000.00 will be available upon your death. Many bank accounts are titled jointly or have a payable on death beneficiary named on the account which means the money in the account goes directly to whoever is named as the joint-owner or as the beneficiary. Therefore, even if you explicitly state that the savings account with $10,000.00 is to go to your close friend under the terms of your Will, that money will not be available to your estate and will pass instead to the joint-owner or beneficiary named on the account. This is a common pitfall that an experienced estate planning attorney can help you avoid.
4. Improperly Leaving Out a Child
There are several good reasons you might choose to not leave anything to one of your children. Your daughter may have done very well for herself and you want to give your money to someone it would be more helpful to. Or, your son may have made some poor choices and would not put his inheritance to a use you approve of. In any case, it is important to properly account for the family member(s) you are choosing not to leave any inheritance. Simply not naming the child in the handwritten Will is not a good option, although it is the option many people choose when not receiving legal counsel. You could be leaving yourself open to a Will Contest by the child you do not name in your Will who could claim that you were not in your right mind since you clearly forgot to mention him/her in the Will. The better practice is to state that you remember the child, but have chosen not to leave him/her anything under your Will.
5. Failure to Name an Executor and/or Guardian
The executor, now often referred to as the personal representative, is the person you designate to carry out your wishes. If you fail to mention the person in your handwritten Will, then the Court will appoint someone to do the job. Normally your closest blood relatives have first priority and this may not be the person you would trust to handle your assets and ensure your wishes are carried out properly. You can also name the person(s) you wish to care for your children if they are minors at the time of your death. The Court is not bound to appoint the person you designated, but great weight is given to your choice. If no one is named as guardian, then, again, the Court will appoint someone who may not have been your first choice.
