D-I-Y Estate Planning

People often ask me about writing their own Wills, and they are usually referring to holographic Wills. A holographic Will is a signed, hand-written document that shows an intent to dispose of assets on the writer’s death. If properly prepared, it can be admitted to probate just like a witnessed Will such as an attorney would normally prepare. Usually these types of Wills are prepared in emergency situations when the writer simply does not have the time necessary to hire an attorney to prepare a witnessed Will. Sometimes, however, people write holographic Wills to avoid attorneys.

Several years ago I probated a holographic Will. Although I never met the woman who wrote it, it appeared that she had wanted to avoid the cost of hiring an attorney to draft a witnessed Will for her. While she was successful at avoiding the up-front cost of hiring an attorney to draft the Will, the cost to probate the Will was far more than she would have paid to have a properly drafted Will.

One problem with her Will was that she did not follow all the rules for a holographic Will, and she did not follow all the rules for a witnessed Will. Her Will was a mix between the two, and the judge decided to treat it as a witnessed Will. However, it was not properly witnessed, so I had to locate the witnesses and have them sign an Affidavit which provided the information that she had left out of her Will. It was a good thing that her witnesses were both still alive, cooperative and had ties to the family so that we could locate them and provide the missing information. If not, the Will would not have been admitted to probate, her estate would have passed by intestacy as if she had not written a Will, and it would have been distributed to different people than she had named.

Most of the time, I recommend that my clients designate their distributions in percentages. So that instead of giving a loved one, say $100,000.00, they give 5% of the estate. With percentages the gifts remain consistent regardless of the value of your estate on your death, and all of your beneficiaries are likely to receive a portion of your estate even if the value of your estate drops significantly. The woman who wrote the holographic Will did not designate percentages for her beneficiaries, but items. So she designated that one of her loved ones would receive a particular piece of jewelry and that another would receive a particular dish. During her lifetime, she had given away some of the items mentioned in her Will, and this created confusion over who was to receive these items at her death. Some of the items she mentioned in her Will were very small value (teacups.)

While I enjoyed this case on an intellectual level, and the clients and family members were delightful to work with, I couldn’t help but think how much easier the estate would have been for all involved if the woman had hired an attorney up front to help her draft the Will. Not only would she have been able to pass more money to her loved ones (by avoiding my probate
fee), she would have saved her loved ones the time and hassle of fixing her mistakes and trying to decipher her intent.

Can you write your own Will? Why, yes, you can, but you can also set your own broken bones, plumb your own house and build your own airplane. The prudent question may not be if you can but whether you should.

Originally published by Susan on May 5, 2014