How often do you go on a trip without thinking about, recording, or communicating your plans for the unfortunate event of something going wrong?
If you are like me and more than 50% of Americans, you don’t have a will or a plan for your estate in place.
(And really, I should know better. I have the knowledge and ability to draft a will for myself, but it’s just not something I am thinking about every day.)
However, there are many good reasons that people, including myself, should have a will in place.
The most important thing that comes to my mind is my wishes for my kids, specifically, which family member would take care of my kids if my wife and I both passed away?
I know…nobody wants to think about that.
But losing their parents would be hard enough. Adding a custody battle to that loss would simply be unfair to them. Plus, I don’t really want a judge who doesn’t know me or my family to choose who is best suited to take care of my kids. I owe it to my kids to sort that out before a tragedy happens, even if it is awkward to think and talk about.
But there are other important questions to consider when planning your will:
Who would you want to have power of attorney to make important health decisions for you if you were unable to yourself (like if you were in a coma…)?
Would you want to be resuscitated or kept on life support if either or both were necessary to keep you alive?
(I would really prefer for my family members NOT to leave that decision up to me…so to all my family reading…make sure this is in your will!)
Who do you want to be the guardians of your children, and do you have any wishes for their education and activities?
Who would you want to inherit your property? Don’t forget about small things, too, that might be of little monetary value but might have a lot of sentimental value.
Do I have to have a lawyer create a will for me?
Honestly, it would be best to have a lawyer draw up an official notarial will. First of all, a lawyer will make sure it is done correctly to minimize the chance that it will be contested after you pass away. There are many small details like language, format, and signature placement that can make your will null and void if not done correctly.
But beyond making sure your will is in the right format to be held up in court, a lawyer will be especially useful in helping you determine what your needs are for a will and estate plan. The more assets you have and the more complicated your family situation, the more complex your will and estate plan will need to be. So again, it is wise to have a lawyer help you identify those needs and make a solid plan for them.
However, you can write your own valid will without a lawyer if you want.
So if I want to hand write my own will, how do I do it?
There is such a thing as an olographic will, which is a will written, dated, and signed entirely in the hand writing of the testator (person making it).
So say you are on your way to the airport for a trip with your wife and you start thinking about all the things that could go wrong. It occurs to you that you have never discussed or verbalized what should happen with your family if your plane crashes. (Morbid, I know, but you know you think about these things too!)
You could literally pull out your kid’s lunch bill and scratch out a quick plan for your intentions. For instance, you might say that you want your entire estate to be divided equally among your three children and that you wish for their Aunt Maggie and Uncle Richard to be the guardians of your children until they reach the age of 18.
Post it on your refrigerator for all to see and voila, if your plan crashes or you and your wife contract some deadly island fever, you can go in peace knowing that you did at least something to make sure your family is taken care of after you are gone.
There are three really important things about an olographic will that make it valid:
It must be entirely written in YOUR handwriting. In other words, typing it up in a Google doc and sharing it with all the people involved would not be valid. Likewise, sending a quick text saying, “Hey, you’ve got my kids if this plane crashes, right?” would also not be valid. (That’s not to say that your children would not ultimately end up with the person you want anyway, but it would be for a court to decide instead of you, and it could get ugly if there are several people in your family who think they should be the guardians.)
It must be dated, also in your handwriting. The date must list the day, month and year. So, for example, you should write June 21, 2019, instead of June 2019.
It must be signed by you at the bottom of the document. You can make additions or postscripts if you have to, but those too must be in your handwriting. Any changes made in another person’s handwriting would not be considered valid.
Other important things:
If you have any previously made wills, whether notarial or olographic, you should add to the document that this will revokes any and all previously made wills. In other words, you have to say that your new will trumps any old wills you may have made. This is one reason the date is so important.
Olographic wills do not have to be notarized by a notary and two witnesses. However, if the testator is unable to write his or her own will, a will written by a family member would not be considered valid. If the testator cannot write, date, and sign the will him or herself, it will have to be notarized by a notary and witnesses by two other people.
Olographic wills can be contested in court, but so can notarial wills. Olographic wills that do not meet the requirements according Louisiana’s laws, it will be considered invalid.
In some cases, it might be necessary for the court to prove that the handwriting was indeed the handwriting of the testator with other samples of handwriting.
So the bottom line is this…
If you have a family or property of any kind and have specific wishes for what should happen to it if you die, you should definitely have a will in place. It is best to have a will drawn up by an attorney to make sure it is done correctly. However you do have the ability and right to hand write your own will. This is a right I would use in a pinch rather than instead of having a notarial will made by a lawyer, but is definitely a valid and useful option.