Could a Handwritten Will Create Problems?
A handwritten will may (1) have it’s validity challenged, (2) increase the cost to an estate, and (3) result in the distribution of assets in a manner that was not intended. Consider if saving on legal fees would be worth the drawbacks of having a handwritten will.
In Massachusetts, if you are over 18 and of sound mind, and have the signatures of 2 witnesses, your handwritten will may be considered valid. However, there are some issues you should consider before deciding a handwritten will (also called “holographic”) is sufficient for your estate planning needs. On one hand, it’s less expensive, convenient and allows the writer (the “testator”) greater control of their assets. On the other, some problems associated with writing your own will can adversely affect those whom you intend to benefit.
Authenticity and Legal Validity of the Will Itself
Depending on your state, the laws governing wills are different. Some states require that wills be entirely in the testator’s handwriting, not typed; others require specific provisions and language. Handwritten wills can open up a big can of worms—they can be contested on the grounds of whether the will was actually written by the testator or if they’re legally sufficient to be considered a will at all. Massachusetts does have some provisions for “self-proving wills” that may help you avoid those issues. In contrast, formal wills drafted by attorneys and appropriately witnessed are readily accessible, legally valid and likely will not be contested on authenticity.
Legal Validity of the Will’s Provisions
Unless you’re a lawyer, you are probably not familiar with the centuries of case law that governs what a will can and cannot dictate. You may accidentally leave out important names, make illegal and/or impossible requests or use vague and confusing terms. In order to remedy that, a court will have to call witnesses and assemble a variety of evidence in order to reconstruct—or piece together—what they thought the testator meant. Naturally, there is no guarantee that the courts will be able to correctly discern your personal wishes after you have died.
Expenses and Taxes
Since both state and federal laws impose estate taxes on some inheritances or wealth transfers, it’s to everyone’s benefit if you consult estate planning professionals. Professionals who routinely work in the field will know the best way for you to avoid hefty fees and maximize what you’re able to leave to your loved ones. Additionally, a contested will adversely affects the sum total of your estate. For some families, it is best to have a formally drafted will with copies accessible to both the family and their attorney.
Lack of Necessary Provisions
Certain clauses—such as spendthrift or residuary clauses or power to sell and manage property—are necessary to properly distribute your property. These clauses can vary from state to state. When you don’t include them, you risk incurring more legal fees on behalf of your estate. Similarly, if you neglect to dispose of everything in your estate, what remains will be distributed according to the legal system’s idea of who should inherit, not your personal wishes.
Are you looking to write your will? Contact call Baker Law Group, P.C. to speak with our experienced estate planners. We’ offer a complimentary case review and can help you decide what kind of estate plan will be right for you. Read more at Estate Planning Overview.
Call 781-996-5656 or toll free at 800-701-0352. MBakerLaw.com