Can I Write My Own Last Will & Testament?

By Cindy DeRuyter, J.D.

Can I Write My Own Last Will & Testament?

By Cindy DeRuyter, J.D.

A last will and testament is a legal document that serves multiple functions, including identifying a personal representative to administer your estate and specifying how and to whom your property and assets should be distributed. They often also document parents' wishes regarding guardianship for minor children. It is possible for you to write your own will, so it's not technically necessary to have the assistance of an attorney. However, if it does not meet your state's legal requirements, a court may find it invalid.

Woman looking at laptop screen and writing in notebook

 

Common Elements in Wills

Anyone who is at least 18 years old and is mentally competent can create a will. The definition of mental competence varies by state, but it generally means that you understand what it is, what it does, and how it disposes of your property and other assets.

The length of a will does not matter, as it generally identifies the testator, or the creator; nominates an executor, or personal representative who handles the estate after the testator's death; and names beneficiaries to inherit the assets of the estate.

It can also include many other provisions, including those designating a guardian for minor children, giving the personal representative authority over digital assets, specifying the powers of the personal representative, and more.

State Law Differences

If you decide to write your own will, make sure you understand your state's requirements for making and executing it to be valid.

Each state has its own laws for determining what makes it valid. Some states allow residents to create statutory wills by completing fill-in-the-blank forms provided by the state. Other states allow holographic wills, which are written entirely in the testator's own handwriting.

State laws also govern the execution of these documents. Many states require testators to sign them in the presence of two adult witnesses who are disinterested parties, meaning they're not beneficiaries, so they don't stand to profit from any assets listed in the document. Other states require these documents to be notarized, while others list that notarization could deem the document to be invalid.

Complex Situations

You may want to evaluate several other potential factors before deciding to write your own will. For example, if your estate might be subject to state or federal estate taxes, if you have a blended family, or if you want to leave money to beneficiaries through trust provisions, writing your own will could have unintended consequences. When people don't use the correct terminology or don't understand how to document their wishes clearly, errors can complicate and delay court proceedings.

While you can write your own last will and testament, it's very important to follow your state's requirements. If the court finds it invalid, someone other than your chosen executor could handle your estate and distribute your assets differently than you intended. So if you do draft your will without professional legal help, any problems or errors likely won't come to light until after your death. Consider working with an estate planning attorney licensed to practice law in your state for when you decide to draft this all-important document.

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