It is a fairly common occurrence to hear that an individual has attempted to write their own will. One common scenario is that someone will be traveling soon and wants to write down their wishes “just in case something happens”. They download a will form from the internet and then sign their names. Whether that will, or another form of self-prepared will such as a handwritten signed will, is valid is an important question. Whether or not such self-prepared wills, if valid, are good, is another important question.
Estate Planning: Last Will and Testament Basics
What is a will?
Generally speaking, a will is a document that provides for the distribution of certain property owned by an individual after their death. A typical will includes instructions regarding how property is to be distributed among beneficiaries and nominates a personal representative (commonly referred to as an executor) to administer the estate in accordance with the will.
What a will does not do.
A will does not control the disposition of certain assets such as retirement accounts, life insurance policies, payable on death accounts, and certain jointly held property. Property that is not controlled by a will is commonly referred to as non-probate property.
What’s probate? Does a will avoid probate?
Probate is the process in which the court oversees the administration of an estate. If you have property subject to probate, which is commonly the case with real property, to pass title to your beneficiaries, your estate generally must go through this court process.
It is a common misconception that creating a will avoids probate. A will, whether self-prepared or prepared by an attorney, is not designed to avoid probate. The most common way to avoid probate is to set up a trust.
Should I try to avoid Probate?
The probate of an estate is not necessarily a result to be avoided. In Washington, the probate process can be more streamlined than in other states if certain conditions are met. There are several pros and cons to probate and those pros and cons should be weighed against the alternative to probate, which generally involves setting up and maintaining a trust-based estate plan. A trust-based estate plan can be easier to administer, but it is higher maintenance and more expensive to set up than a will-based plan. Every individual’s situation is different, we advise you to seek legal counsel in this matter regardless of whether that’s from Navigate Law Group or not.
How do I know if a will is valid?
The question of whether any will is valid in Washington depends on how it was executed. A will that is handwritten and signed by the person making the will (called the testator) without the presence of witnesses is commonly referred to as a holographic will. Such wills are not valid in the state of Washington because they are unattested (unwitnessed). So, in short, simply writing down your wishes and signing your name does little to control your estate.
The validity of any will, whether handwritten or prepared by a computer program, depends on the same factors. In short, the person making the will must have the requisite mental capacity, the will must be signed by the person making the will, and the will signing must be witnessed. Either a handwritten will or a self-prepared typed will can be valid if it meets these requirements.
Requirements For a Valid Will in Washington:
To be valid in Washington a will must be:
- In writing;
- Signed by the testator; and
- Witnessed and signed by two or more competent witnesses while in the presence of the testator and at the testator’s direction or request.
Additionally, every individual at the time of signing a will must have the requisite mental capacity to do so. This mental capacity is called “testamentary capacity”. For an individual to have testamentary capacity they must:
- understand that they are executing a will disposing of their property;
- understand generally the nature of their assets in their estate; and
- know who the natural objects of their bounty are (e.g. who their family is).
One caveat to the analysis above relates to foreign wills, which are wills executed out of state by a person who lives out of state. In short, the validity of a foreign will depends on whether that will is valid in the state in which it was executed.
Proper testimony from witnesses should be documented so that a valid will is admissible to probate:
Since testimony from witnesses can be difficult to obtain after the death of the testator, it is best practice to prepare an affidavit or sworn declaration that complies with the requirements of RCW 11.20.020(2) for the witnesses to sign when they witness the will. This affidavit or declaration makes a will “self-proving”, which means that it can be admitted to probate without any additional steps.
The analysis regarding a valid will vs a valid admissible will may seem confusing, but each occurs at a separate point in time. A will’s validity is determined at the time the will is signed by the testator. Whether that will is admissible to probate after the death of the testator depends on events that occur after the signing of the will.
What happens if a will cannot be admitted to probate?
If a will is valid, yet unable to be admitted to probate because proper testimony from witnesses was not documented in a declaration/affidavit and those witnesses are unable to be found, then major hurdles exist to admit the will to probate. The worst case scenario is that an otherwise valid will is not admissible and therefore the probate must proceed as if the will did not exist. Dying without a will is called dying intestate and, in that case, the state’s default rules govern the administration of the estate. The state’s rules of intestacy might not match the wishes of the decedent.
Are electronic wills an option in Washington?
Should I prepare my own will?
A do-it-yourself will can be a trap for the unwary. Even if a will is executed properly, preprinted forms commonly do not address an individual’s specific circumstances and are generally not state-specific. Washington, for example, has what’s called non-intervention powers that a personal representative can be granted in the will, which simplifies the probate process. If you are considering whether you should prepare your own will or see an attorney to set up an estate plan, it is important to know the basics of what a typical estate plan includes:
• Planning for Minor Beneficiaries.
Planning for minor children is a common and important primary goal for parents. It is problematic for minor beneficiaries to inherit assets for several reasons and dealing with this issue after the fact can be complicated and expensive. When preparing an estate plan, there are several considerations when planning for how assets can be held and managed for minor beneficiaries. An estate planning attorney can advise on the best option based on the client’s goals and assets.
• Coordinating Beneficiary Designations of Retirement Accounts and Life Insurance.
A will does not control the disposition of all assets of a person’s estate. Assets such as retirement accounts and life insurance pass to the persons designated as beneficiaries. A thorough estate plan coordinates these beneficiary designations with your will so that all your assets are accounted for. This is especially important when an individual does not want to leave the entire amount to a beneficiary outright because that beneficiary is a minor or an adult who would not be able to manage a large lump sum of money. Pre-tax retirement accounts (i.e. IRAs, 401ks), are subject to a very complicated set of income tax rules governing how beneficiaries are taxed. Understanding those income tax consequences is important when considering how to plan for those accounts.
• Planning for Incapacity.
Part of a comprehensive estate plan involves executing a power of attorney. Your agent under your power of attorney makes decisions for you if you lack mental capacity to do so. One main goal of a power of attorney is to avoid the invasive and costly court process of a conservatorship or guardianship. A well drafted power of attorney is coordinated with a client’s overall estate plan.
• Estate Tax Planning.
An estate planning attorney will thoroughly review assets and can advise on whether there might be any estate tax owed after death. There are strategies for minimizing estate tax that an estate planning attorney can utilize.
Executing your own will can be achieved if the elements for a valid will in Washington are met. If a will is signed by a testator and witnessed by two individuals, then the basic elements are met. A hurdle to admit a valid will exists if proper testimony from witnesses is not documented before the death of the testator. When deciding whether you should attempt to draft and execute your own will it is important to know what common issues generally require comprehensive planning. If you have questions about preparing a will, feel free to contact Navigate Law Group. We are here to assist you with your estate planning needs.
Our Estate Planning Attorneys
Josi R. Howard
Estate Planning | Estate & Trust Administration
James C. Howe
Estate Planning | Estate & Trust Administration | Business Law | Real Estate
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Every legal issue is very unique. Accordingly, the information in this blog is intended as general education material and not as legal advice. If you think you may have a legal issue you should consult an attorney.