Writing Your Own Will

Many clients believe all they need is a Last Will. I believe a Power of Attorney is much more important. A Power of Attorney decides who manages your assets, and your bill pay, while you are still living. But that said, a Last Will can still be very important. A Last Will decides who inherits what, after you are deceased. Most people want everything to go to their spouse first. If there is no living spouse, then they want everything to go to their children in equal shares. That is very straightforward, and with limited exceptions that is what the law will automatically do if you pass away without a Last Will. Having a Last Will is important if your wishes are any different than this. Perhaps you are in a second marriage with children from a first marriage. Maybe you want to ensure one child gets a particular family heirloom without having to fight their siblings for it. In most cases the default law is good enough. This is not to say a Last Will is not important even in those cases. It does make probate much easier. But the end result is probably going to be the same.

It is also very important to understand that the Last Will does not control most of your assets. For example, if you co-own a checking account with a spouse or child that is who will own it after you pass away. Your Last Will does not control a co-owned asset. The same is true for a beneficiaried asset. If you listed a beneficiary on an IRA or Life insurance, or any account, that beneficiary can just collect the asset after your passing. It does not go to probate first, and the Last Will does not decide what happens to it.

The Last Will only controls assets that have no living owner, and no specific beneficiary. The Last Will then becomes the default beneficiary designation. But it is important to understand this DOES NOT avoid probate. The Last Will are the rules the probate court follows to handle your solely owned non-beneficiary assets. Those assets in just your name with no specific beneficiary are going through probate and the Last Will tells the court what to do with them.

You can write your own Last Will. Whatever you want to say about who inherits what, you have the right to say so. But be sure it's in writing. Also, be sure to say what happens to the inheritance if the people you named are not living when the time comes. If it is not clear what you meant, your legal bloodline inherits. Which means that unless you specifically exclude your estranged child, they may end up getting something.

Further, be sure those witnesses have sworn that they witnessed your Last Will properly. Otherwise if your Last Will is contested, those witnesses will have to be found and brought to court to verify their signatures. This can cause real issues when the Last Will was signed years in advance. 

The witnesses should be impartial. In any legal document, the witnesses who swear it is valid should not benefit from whether or not the document is valid. Otherwise how can we be sure it is valid at all? More than once I have seen Last Wills done on the cheap, with the kids or spouse as witness. This is such an easy pitfall to avoid, but not one that places like Legal Zoom highlight.

Attorney Halley C. Allaire is principal in the law firm of Allaire Elder Law, a member of the National Academy of Elder Law Attorneys, Inc., with an office at 271 Farmington Avenue, Bristol, (860) 259-1500, or on the web at www.allaireelderlaw.com. If you have a question, send a note to Attorney Halley C. Allaire and your question may be discussed in a future column.