By Robert J. Green
From time to time in my practice as an estate planning attorney I come across a Last Will and Testament (a “will”) that is handwritten. If my client is the person who wrote the handwritten will, he or she is usually meeting with me due to a decision to formalize the estate plan. However, I am always asked in that scenario: “was my old handwritten will valid?” The answer, as it so often is with legal matters, is that it depends.
A will is the document you would use to leave instructions regarding what should happen to your possessions and assets when you die (who gets what), as well as who it is that should carry out your wishes (who’s in charge). Wills become effective after your death by going through the court-controlled process known as probate.
Idaho law recognizes handwritten wills (technically referred to as “holographic wills”) as valid if they meet some very specific requirements. These requirements include the necessity that the signature and the material provisions are in the handwriting of the person writing the will. This has a few implications. First – if you are unable to actually write, by hand, the material provisions and your own signature (i.e., you instruct someone else to do so on your behalf with your permission), then your handwritten will is not likely valid in Idaho. Second – you will want to understand which provisions of your will are considered “material” as those must be in your own handwriting. In other words, you may need to consult with an attorney to be sure your handwritten will is valid - but if you wrote your own will by hand, you were probably trying to avoid talking to an attorney in the first place.
Other questions beyond simple “validity” also quickly become relevant with handwritten wills. Has the will been witnessed and notarized? If so, do the witness and notary sections meet the requirements for a “self-proving” will under Idaho law? Do you need your will to be “self-proving”? Will your handwritten will be easier to challenge by someone after your death? Have you eliminated the ability for your Personal Representative (the person you leave in charge of your estate) to utilize the informal version of probate (the version of probate that potentially allows your Personal Representative to avoid a courtroom altogether)? In short, have you created more problems than you have avoided by handwriting your own will?
Every circumstance is unique, and there can certainly be a place for a handwritten will in some instances. However, most Idahoans would do themselves and their loved ones a big favor by having their will drafted by a competent estate planning lawyer who can discus the whole array of possibilities, potential pitfalls, and unintended consequences of taking one approach versus another.
An added benefit of meeting with an estate planning attorney is that you will typically discuss at that meeting the entire collection of legal documents that virtually every adult should have in place (collectively known as your “estate plan”). These documents include power of attorney for financial decisions, power of attorney for health care decisions, a living will, a personal property memorandum, a community property agreement, a possibly a revocable living trust. This is also the time to learn whether you may be able to avoid the court-controlled probate process altogether, and to learn what the tax implications of your estate may be and what can be done about taxes.
If you do not have any legal documents in place, or are unsure whether you have everything you need, talk to a good estate planning attorney. Some law firms, like mine, will offer you a free consultation to come discuss these topics and even review any of your existing documents. Why not to take advantage of such guidance and leave nothing to chance?
This has been presented as general information and not as legal advice. Do not engage in legal decision-making without the advice of a competent attorney after discussion of your specific circumstances.