Preamble: I am an attorney, licensed to practice in California and before the federal courts. This article is not intended to provide legal advice, and it does not in any way imply that the reader has an attorney/client relationship with me just by virtue of having read it. This article is not intended to constitute legal advice. I strongly encourage you to retain legal counsel of your own choosing to advise you, because your specific situation may well make the document described below inappropriate for your circumstances. Only a one-on-one consultation with a licensed attorney in your own state of residence will provide you with full and accurate legal advice. Do not read any further unless you understand this admonition and agree to proceed at your own risk.
In the United States, laws regarding Wills, Estates, Trusts, and probates are controlled by each individual state. In every state but Louisiana, you can write your own Last Will & Testament without the assistance of an attorney and without witnesses. This type of will is called a “holographic” will, and there are only a few basic necessities. You must write the document completely in your own handwriting. No typing is permitted. The document must have the date on it that you signed it, and it must be signed by you. That’s all. Your heirs will be able to take the Will to the local probate court after your death and ask to have your assets distributed according to the provisions you’ve written out.
Here are some suggestions to be sure you include to make a better, more easily enforceable will:
- Start with stating your name and that the document is intended by you to be your Last Will and Testament
- State that you are revoking any prior wills
- State whether you are married or single, and list the names of your spouse and ALL children, including children you may have acted as a step-parent to, have adopted, or even acted as a foster parent to during your lifetime. ALL biological children must be named in the will. You don’t have to leave them anything, but you have to name them so that the judge will know you didn’t just forget about them. If you do not intend to leave any money for one or more of your children or to your spouse, then you must specifically say that. For example, you might say, “I have two children, who are Wilbur Eastwood and Wilma Eastwood. I do not intend to leave my son, Wilbur Eastwood, any gift under this will.” You don’t have to say why. You can only give away what belongs to you — Property that your spouse owns or has an interest in by virtue of being married to you is NOT something you can give away in your Will. If you are married, state that you are only intending in the will to give away property that belongs to you, and not to give away property that belongs to your spouse.
- Make one paragraph for specific gifts. For example, say “I give my coin collection to my friend, Mary Smith, and I give my car to my brother, Steven Jones.” I do not suggest giving a specific amount of money, such as $10,000.00, because you can never be sure how much money will be left in your estate. If you end up with only $11,000.00 total in your estate, and you gave $10,000 of it away thinking your residuary beneficiaries would still have plenty because you had a lot more money when you write the will, then you have done yourself and your heirs a disservice. Instead, I suggest you give a specific percentage of the value of your estate at the time of probate. So instead of giving Mary Smith a specific gift of $10,000.00, give Mary Smith a gift of 10% of your estate. Of course, the specific percentage is something you will have to decide for yourself.
- Make a separate paragraph for “everything else”, and say “I give everything else in my estate to”, and then name the person who gets the “rest and residue” of your estate after the specific gifts are given out. If you are naming more than one person to have it divided among, then say “to Mary Smith, Steven Jones, and Carl Perkins, in equal parts among them”.
- Name an Executor — someone you trust to take your will to probate court and, with the judge’s help, liquidate and/or distribute your assets as you’ve directed in this will.
- Sign it at the BOTTOM of the will, and make your signature the very last thing written in the document.
- DO NOT go back and add or delete things later. If you change your mind about something, make a WHOLE NEW WILL.
Those are the basics. There are many, many details and potential pitfalls in drafting your own will, and most attorneys will draft a simple will for around $100 or less. $100 is a VERY small price to pay to ensure that your estate is properly outlined and directed for distribution. I STRONGLY suggest that you employ an attorney to help you with this. The guidelines given above do not cover issues of avoiding probate by use of a trust, instructions to physicians (commonly known as a “living will”), powers of attorney, nominations of conservator, or a host of other legal documents that may save you and/or your heirs a great deal of time and money in the long run.
