Is My Self-Prepared Will Valid in Washington?

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?

What a will does not do.

What’s probate? Does a will avoid probate?

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?

How do I know if a will is valid?

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:

A will is designed to control the administration of an estate through a court process called probate. Therefore, it is important that a will is able to be admitted to the probate court after the death of the testator without issue. A will may not be admitted to probate unless there is testimony from witnesses, even if it meets the requirements of a valid will above. Therefore, it is important when executing a will that the testator documents proof of its validity. Signing the will as a witness itself is not the same as providing testimony as to the will’s validity, but some counties in Washington consider this to be sufficient and will admit the will 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?

Are electronic wills an option in Washington?

Recently, Washington enacted The Washington Uniform Electronic Wills Act. This act is effective January 1, 2022, and allows Washington residents to digitally execute their wills. Under this act, instead of being physically present, witnesses can be digitally present. Additionally, wills can either be printed and traditionally signed or can be signed digitally and stored in a digital format. One important requirement is that an electronic will needs to be kept by a “qualified custodian” at all times after executing the will up until the will is admitted to probate. Executing a will digitally should only be attempted by someone with a thorough understanding of this new act, as there are several nuanced elements and technical definitions.

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.

• Coordinating Beneficiary Designations of Retirement Accounts and Life Insurance.

• Planning for Incapacity.

• Estate Tax Planning.

Final Thoughts

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.