Many of us know the satisfaction that comes from figuring out how to change out a light fixture or get to the bottom of a dripping faucet. On the other hand, many of us have also experienced the sinking feeling of a do-it-yourself project gone wrong: a gushing faucet that requires immediate professional attention or a light that won’t turn on. With home repairs, your success, or lack thereof, becomes evident fairly quickly. Unfortunately, the same cannot be said for do-it-yourself estate planning. Oftentimes, the mistakes made when individuals write their own wills are not discovered until it is too late to fix them.
This article explores the laws surrounding “do-it-yourself” wills and discusses how writing your own will can affect your estate.
Will it Be Valid?
Louisiana, like many other states, has laws in place that allow individuals to draft Olographic Testaments (the legal term for a self-drafted will). Under our laws, this type of will need only be entirely handwritten, dated, and signed by the testator (the person writing the will) in order to be valid in form.
Many of the self-drafted wills I see are invalid because part or all of the will has been typed, there is no date, or the person writing the will forgot to sign it. This renders the will invalid and unenforceable.
Unfortunately, even when a self-drafted will meets all of these requirements, it often does not accomplish the estate planning goals of its author. Worse yet, if a succession is needed, a valid self-drafted will, even one that does not accomplish its author's goals, must be probated and its terms must be followed.
Is it Going to Accomplish Your Goals?
The most important question to answer with a handwritten will, and the one most difficult for an individual to determine without legal assistance, is whether or not the will he is drafting is meeting all of his objectives.
Most individuals have three main goals in drafting their own wills: to direct the distribution of their property, to save money, and to keep things simple. In almost every situation, it is more difficult for an individual to accomplish these goals with a handwritten will, rather than one prepared by a knowledgeable attorney.
When individuals write their own wills, they typically use language that is familiar to them to describe their wishes. The language that they use may or may not be legally sufficient to accomplish their goals and may cause confusion during the administration of the estate.
For example, John Doe may write "I want all of my property to go to Jane." Was it his intent for everything he owned to go to Jane or did the word "property" only refer to his land? The answer to that question does not just depend on what John thought the word “property” meant; it also depends on what a Judge, who has never met John, thought he meant when he used that word. Imprecise language like this can bog down an estate with months of litigation, all the while incurring unnecessary expenses. A properly drafted will address this issue, and many others, with precise language that has been defined in Louisiana law and case-tested in Louisiana courts.
Is it Going to Complicate Your Estate?
In addition to jeopardizing your estate planning goals with unclear language, a self-drafted will can delay the administration of your estate by failing to include language that can allow your estate to pass quickly through our court system.
When someone passes away, a succession (also called a “probate proceeding”) is usually required in order to settle the person's estate and distribute his or her property. If the will does not specifically permit the Executor of the estate to act independently on behalf of the succession, the Executor may need to jump through additional legal hoops in order to receive, maintain, and distribute estate property. Even the simplest will drafted by a knowledgeable attorney can avoid these potential pitfalls and ensure a speedy and straightforward settlement of the estate. At the very least, it is a good idea to have your handwritten will reviewed by an attorney.
If you'd like to know more, or if you'd like to set up a complimentary consultation to discuss your estate planning, please call us at (225) 615-0532.