3 Types of Wills
What are the requirements in leaving behind a valid Will? You may have heard about a person writing his wishes on a napkin and someone finding it after the writer’s death and submitting it to a court as a Will. You may also have heard about the person who downloads a “do-it-yourself” Will and fills in the blanks by hand on the printed page dividing her estate upon her death. What if a person sent an email to his next-of-kin? Could any of these be a valid Will?
Generally speaking, there are three kinds of Wills: (1) holographic—written entirely in the handwriting of the person writing the Will; (2) standard, formal typewritten—printed or typed; and (3) partially handwritten and partially typed. The requirements for a valid Will are different for each type of Will.
The Handwritten Will
For a valid holographic (think handwritten) Will, the document must be entirelyin the handwriting of the person writing the Will. The document must be signed by the author. The document need not be dated, although that would assist the probate judge. The document need not be witnessed, although that too would assist the probate judge. It does not have to be notarized, although that would aid the probate judge even more. The Will must have words showing the person’s testamentary intent. For example, “I give,” “I want Shirley to have,” and the like.
The writer must also have testamentary capacity. This concept was discussed in a blogpost written on April 15, 2019. If this Will is not witnessed, then at the time the document is presented to the judge for probate, witnesses will need to testify to the writer’s handwriting and to the writer’s testamentary capacity.
The Typewritten Will
For a standard, formal, typewritten Will, the Will must be signed and must be witnessed. Some states require two witnesses; some states require three. It should be dated. This Will must also have words of testamentary intent (“I give” or “I want Bill to have”) and the writer must have testamentary capacity. If the Will is “self-proved” according to the formalities of the law of your state, then witnesses as to the writer’s handwriting and to the writer’s testamentary capacity will not be required to testify at the time the document is presented to the judge for probate.
The Partially Typewritten and Partially Handwritten Will
Lastly, a document that is partially handwritten and partially typed will be held to the higher standard of a standard, formal totally typewritten Will. That is, it must be signed, dated, and witnessed. Just like the previous two, this Will must also have words of testamentary intent and the writer must have testamentary capacity.
So, let’s return to the questions asked at the very beginning. A person writing his wishes on a napkin may very well have written a valid Will, if it meets the requirements of a holographic Will. The “do-it-yourself” Will—partially handwritten and partially typed—may be valid, if it meets the higher standard of all the formalities of a Will that is totallytypewritten. What about the email “Will”? The email is not “signed,” so that omission brings the validity of the document into immediate question (but what about an electronic signature?). If the email is not “witnessed,” then that omission also calls into question the validity of the email as a Will—that is, how do we really know the now-deceased person actually wrote and sent the email?
Fewer disputes arise and fewer families are broken apart, if a person’s last wishes on how to divide the person’s personal property and the real estate are expressed according to the law. Often the smartest guy in the room isn’t the smartest. And after his death, he doesn’t know what he has left behind for his surviving spouse and surviving children to contend with. Please consult a probate attorney before tackling what constitutes a Will without the benefit of legal advice.