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Handwritten WillsDolores M. Coulter © July 2009
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Q. I am thinking about writing my own will. I don’t have a lot of property and I don’t want to spend a lot of money on estate planning. Is a handwritten will legal? Michigan law specifies certain formal requirements for executing and signing a will. The will must be in writing and it must be signed by the person making the will (called the testator) and by two witnesses. If the testator is physically unable to sign the will the testator can direct another person to sign on his/her behalf and in his/her presence. The witnesses must either witness the actual signing of the will by the testator or the testator must acknowledge to the witness that he/she signed the will. However there is an exception to the requirement for two witness in the case of a handwritten will (also called a holographic will) if the handwritten will meets certain requirements. A handwritten will is considered a valid will under Michigan law if the material portions of the will are in the testator’s handwriting and if the will is dated and the testator’s signature appears at the end of the will. A handwritten will does not need to be witnessed or notarized. If you are considering a handwritten will you should write out the entire will in your own handwriting in order to avoid any questions about what provisions will be considered material. A common problem with handwritten wills is that the person writing the will does not provide for possible changes in circumstances. For example most parents assume that their children will outlive them, so in a handwritten will they don’t include a provision that addresses what happens if one of their children dies before they do. Michigan law will “fill in the gaps” for these types of situations with certain default rules, but the result may or may not be what the maker of the will intended. If your will simply states that all of your property is to be divided equally among your children, and one of your children dies before you do leaving grandchildren, then the deceased child’s share will pass to the grandchildren. This may be what you intended. However, if not – if your intent in that situation is that your property should be divided among your surviving children - your will must specifically state that. Another example of a will provision that can create a potential question of interpretation is a provision that gives a specific item of property to a specific person – what happens if you no longer own that item at the time of your death? The default rules in the Michigan probate code are somewhat complicated, so it is best to provide for this contingency in your will. In some instances the person making the will does not take into consideration the possibility that the amount of property in his/her probate estate might be much less than what he/she now owns, either because of declining asset values, unforeseen expenses, or other circumstances. For example, if your will includes a provision for gifts of specific dollar amounts to certain persons or charities, with the balance to be divided among your children, what happens if there is not enough money left after paying the claims and expenses to make all of the specific gifts? One alternative to consider is to make the gifts in terms of percentages rather than specific dollar amounts. In all of the above examples the unfortunate reality is that by the time the question arises as to what the testator actually intended when he/she wrote the will, the person who can best answer that question – the testator - is no longer available. It is important to keep in mind when writing a will that a will, by itself, does not avoid probate and that many property transfers that take place by reason of the property owner’s death are governed by beneficiary designations or joint ownership and not by the will. Property that is titled solely in your name, with no beneficiary designations, must go through probate in order transfer legal title to the persons designated in your will or, if you have no will, to your heirs. An interest in real estate that is held as a tenancy in common instead of joint tenancy will require probate. However many property transfers that occur by reason of the property owner’s death take place outside of the probate process, through beneficiary designations or joint ownership. If as asset is subject to a beneficiary designation, such as a life insurance policy, annuity, bank account, or retirement account, those assets will pass directly to the beneficiaries and are not governed by the will or subject to probate, except in limited circumstances where all the beneficiaries are deceased or the estate is named as the beneficiary. Assets that are held in joint tenancy pass directly to the joint owner and are not governed by the will. Your will should express your wishes as clearly as possible. You will save legal fees by writing your own will. However if your will has a lot of gaps or has provisions that are unclear your beneficiaries may have difficulty figuring out what you really intended, or worse yet, your estate may become the subject of expensive and lengthy probate court proceedings that could have been avoided. Before deciding to write your own will you should consider contacting several attorneys who do estate planning and inquire about the fees for writing a will. Some attorneys are reluctant to quote a specific fee because a “simple will” sometimes turns out to be a lot more complicated, but the attorney might be willing to give you a fee range. By having an attorney prepare your will your may not only be saving your beneficiaries some headaches and extra legal fees but also assuring (or at least increasing the likelihood) that your final wishes will be carried out in the way you intended. |
