In these challenging financial times, people are eager to “do it yourself” and save money whenever possible. But is making a will a good DIY project? Many people think that it is and decide to write their own will without the assistance of an estate planning attorney. But is that legal? Are handwritten wills enforceable even if they are not witnessed? And what happens if a family member challenges the will after you die?
Here are four things to keep in mind if you are asking yourself these questions:
1. A Will Must Be in Writing
This may sound obvious, but historically there have been situations where people are dying and quickly give verbal instructions in lieu of a written will. These are known as oral or nuncupative. Although some states will admit a nuncupative will, Virginia is not one of them. In fact, the only scenario where an oral will may be admissible in Virginia is when an active duty member of the armed forces gives one on their deathbed.
2. A Will Needs to Be Signed
Most wills are typed documents. You can type the will yourself or have someone else, usually an attorney, type it for you. Regardless of who types the will, it needs to be signed by the testator–the person making the will–or a person acting “in the testator’s presence and by his direction.” In other words, if you are physically unable to sign the will for any reason, you may ask someone to sign your name for you, provided you are both in the same room at the time.
3. A Handwritten Will Is Legal–With Certain Caveats
Instead of typing a will, what if you decide to write one out by hand? Technically, this is legal in Virginia. A handwritten will is known as a “holographic will” and it is valid, provided you write out the entire document yourself. If any portion of the will is typed or written in someone else’s handwriting, it is not considered holographic.
4. Wills Need to Be Witnessed or Proved
A will should always be signed by the testator in the presence of at least two “disinterested witnesses.” Basically, any legally competent adult who does not stand to benefit from your will personally can serve as a witness. You should always be in the same room as the witnesses when the will is signed. Holographic wills technically do not have to be witnessed when they are made, but Virginia law still requires at least two disinterested witnesses can establish the will was completely in your handwriting.
What Can Go Wrong With a DIY Will
A key issue with making your own will is that you may not strictly follow the necessary legal requirements described above. Perhaps you only have one witness or decide to mix typewritten and handwritten notes together. The problem is, once your will is discovered after your death and submitted for probate, it will be too late to correct any defects.
Also keep in mind that if you own property outside of Virginia, another state may not accept your handwritten or DIY will. For example, Florida will not accept holographic wills under any circumstances. So if you have a second home in Miami, the Florida courts will need to see a will that meets that state’s requirements.
At the end of the day, the time and expense of working with a qualified estate planning attorney will prove more than worth it, both to you and your family. To learn more about the estate planning process, please call Promise Law today at (757) 690-2470 and enroll in one of our free educational workshops. You can also contact us by clicking here and we’ll be in touch!