Estate Planning – Why Can’t I Just Write my Own Will?
BY ATTORNEY SUSAN I. JEAN, May 17, 2019
I was sitting across the conference table from an older lady (“Clara” for purposes of this Article, not her real name) who has a very simple situation. She has three children and wants her estate to go to the three of them equally. Sounds simple, yes?
Virginia allows holographic Wills. These are Wills that are completely in the testator’s handwriting, are signed, and that are clearly intended to say who should inherit. They don’t need to be witnessed, don’t need to be notarized. So, yes, she could handwrite her own Will. However …
Turns out that two of her children have children themselves (Clara’s grandchildren). One of Clara’s grandchildren has been diagnosed as being on the autism spectrum and will most likely not be able to provide for himself. So, if Clara writes her own Will, what happens if one of her children predeceases her? What happens if the grandchild with autism inherits? What happens if the 14-year-old grandchild inherits? Is Clara’s handwritten Will likely to answer these questions?
When an Executor in Virginia needs to sell real property (to pay debts, or if the beneficiaries can’t agree on what should happen with the property), a Will need “special language”; without that special language, the Executor will need a court order to sell the property. Is Clara’s handwritten Will likely to include that special language?
Clara has added her local daughter as joint owner on all of her accounts, so that her daughter can pay her bills for her if needed. Clara needs some information about how that affects what passes by her Will.
So … yes, Clara can write her own Will. No, Clara shouldn’t write her own Will.
Next week, let’s talk about why it may not be wise to use internet forms for Wills.