Dear Angel,
My husband insists on us writing our own Wills. He said that handwritten Wills are legal in Virginia and that we don’t need help from an attorney. Is this correct, and if so, can you tell me some of the things that can go wrong if you write your own Will by hand, so I can talk him out of it? Thanks for your help!
Wenita Naturni
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Dear Wenita,
Yes, it is possible to handwrite a Will by yourself (also called a “holographic Will”) without the help of an experienced estate planning attorney. Here are several examples of things that can go wrong:
• Ambiguities and Errors: The intended meaning may have been clear to the testator (the person who wrote the Will), but those who are reading and trying to interpret the Will can be left with confusion over the testator’s true intentions. For example, a handwritten Will left an entire estate to the “University of Southern California, Los Angeles.” The estate was fairly sizable, and both USC and UCLA asserted claims that they were the intended beneficiary, because there was no university matching the name used in the Will.
Another man with a small farm left all of his personal property to his friend and neighbor, with the remainder to his the two sons. Based on the testimony at trial, it was clear that the man who wrote the will thought that “personal property” just meant things like lawnmowers and tractors and garden and farm equipment, but under the law, personal property includes all cash, which is considered “intangible personal property,” as opposed to “tangible personal property” which is what the farmer actually meant. so in this case the farmers neighbor inherited over $1 million in addition to the farming equipment — $1 million that was intended for the farmer’s sons.
Ambiguities can also occur with respect to specific assets. If the Will says, “I leave my car to my good friend, Jeremy Connors,” does this mean the new Tesla you just bought or the old Chevy station wagon you’ve had for years?
Mathematical errors can also create ambiguities. For example, an unmarried man wanted to leave his business to his good friends and long-time employees, so he allocated percentage ownership interests to six different people. Unfortunately, when the total was added up, it came to 103%.
• Failure to Dispose of the Entire Estate. Typically, handwritten Wills are written so that certain individuals are to receive certain specific assets. A problem arises when the Will disposes of less than all of the estate. For instance, if the Will gives away one’s house, car, and bank accounts, but neglects to mention furniture and other personal property, these unspecified items may end up going to someone who was not the person the testator intended.
• Failure to Update Handwritten Wills: What often happens with handwritten Wills (and even
sometimes with attorney-drafted Wills) is that they don’t get updated. What if someone left their house to a person, and then sold it before they died? What if someone left you money from their bank account or stocks, and then changes banks or sells the stocks? If the Will doesn’t get updated, some intended beneficiaries may get all and others may get nothing.
• Failure to Name Contingent Beneficiaries: The persons you name in your Will to receive your assets are called “beneficiaries.” A common error in handwritten Wills is that the testator fails to anticipate the possibility that a named beneficiary might die before the testator. If the testator does not name an alternate beneficiary and the named beneficiary predeceases the testator, the gift to the named beneficiary may not end up where it’s intended to be. For example, if you leave part of your estate to one of your children, and you don’t expect the child to die first; but if that did happen, you may want that child’s share of your estate to go to his or her children. If you don’t put
the proper provisions in your Will, those grandchildren may get nothing of what their
parent was to receive.
• Failure to Name an Executor: Typically, those who write their own handwritten Wills focus mainly on who will get what when they die, but they
neglect to nominate an executor who will see to it that their wishes are properly carried out. If no executor has been named in the Will, the court generally must appoint an “administrator” to perform the duties of the executor. The person appointed by the court may or may not be the person the testator would have chosen.
• Failure to Address Special Situations: It may be that a named beneficiary is disabled and receiving government benefits that would be adversely affected by a direct inheritance. Or maybe a beneficiary has a substance abuse or gambling problem, or some other circumstance that would make an outright inheritance a bad idea. It may be that some of your intended beneficiaries should receive their inheritance in a trust of some kind, rather than an outright distribution that could have unintended consequences. A handwritten Will is simply not appropriate in such situations.
• Failure to Name Guardians: For testators with minor children, their Wills should include the carefully considered nomination of guardians for the children in the event both parents are deceased before the children reach adulthood. This can be
critically important, yet it is often overlooked in handwritten wills. If the parent fails to name a guardian, the court must select and appoint someone. Often the judge will name the closest living relative, who may be the last person you would have wanted to get custody of your children.
As you can see, many problems can arise if you elect to do handwritten Wills. Be wise and make an appointment with an experienced estate planning attorney, such as those at the Farr Law Firm, for all of your estate planning needs.
Hope this helps!
Angel
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