I spoke at a meeting of special needs parents one time, and in the course of the discussion one woman shared that while she hadn’t yet done a will, she does do an informal, handwritten will every time she takes a trip. Her question was, is it valid?
I like that she was taking action. Imperfect can be better than nothing. Especially with a special needs child, her handwritten will, if done propoerly, could make a huge difference in the amount of money available to care for her special needs child over her lifetime.
Or it could drastically reduce the amount of money available.
Every state has very specific rules about how a will must be created in order to be valid, rules that deal with things like witnesses – how many, what they must say, who can be a witness – and notarization – whether you must have it or not – and the actions of the testator – what he or she must say to the witnesses, whether testator and witnesses must see each other sign, when the testator is “fit” to make a will. If you miss or mess up one of the requirements, your will either won’t be accepted by the court, or your estate will spend a lot of money convincing the court to take the will anyway.
Many states also allow what are called “holographic” wills, that is, a will written completely in the testator’s own handwriting, that can therefore skip many of the otherwise required elements. But each state also has their own rules about these kinds of will, too.
In Texas, if the will is completely handwritten by the testator, and signed, it is valid, even without witnesses or a notary.
Writing your own will MIGHT be better than not doing one at all, but it can still wind up costing as much or possibly much more in the long run than the amount you save by not paying an attorney or even buying will-maker softare.
- if you fail to specify an executor, someone will have to petition the court to act as one – resulting in adidtional cost to probate the will
- if you don’t say that your executor serves without bond or can conduct an independent probate, then there may be significant additional cost to probate the will
- if any of what you write is ambiguous, the court may have to make a determination of your intent – after a hearing which of course means additional cost
There are other ways in which a self-written will may not accomplish your goals as well as it could have if you had consulted an attorney. Doing your own legal work is similar to doing your own home repair – some repairs are simple enough to do yourself, some are so difficult or require specilized tools that you know you can’t even begin to do them yourself, and then there are a bazillion repairs in between those two extremes that you have no way of knowing whether you can do them properly and may only find out you couldn’t after you’ve made a colossal mess and had to hire someone to fix the original problem and the new one you inadvertently created.
That said, many people do their own home repairs because they have no other choice. And if you have no will and don’t intend to hire an attorney any time soon, a handwritten, holographic will might be better than nothing.