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CAN I PREPARE MY OWN WILL?

By:   Sandra L. Clapp
Sandra L. Clapp & Associates, P.A.

 A will is one of the fundamental estate planning documents that every adult should have in place.  To be of highest use, the will should contain current information and directions.  With forms and guidance readily available to us through the internet and other sources, the question often arises whether a will can be prepared without using an attorney. The general purposes of a will include:  (a) naming the personal representative (the executor) of the estate; (b) nominating guardians for minor or disabled children; (c) making charitable devises; (d) equalizing or forgiving loans or assistance among children or other heirs; (e) protecting a disabled heir and any related governmental benefits; (f) distributing tangible personal property; (g) establishing trusts for a surviving spouse or heirs; (h) establishing the shares and identity of the heirs (or persons to disinherit); (i) minimizing estate taxes; and (j) providing specific distribution of assets such as real property or businesses. 

To be valid, the formalities of the statutory provisions in the state where executed must be followed.  Each state may have different requirements for the will to be considered a valid testamentary instrument.  In Idaho, a will must either set forth the material provisions in the handwriting of the individual preparing it (known as a holographic will) or be executed by the individual in front of two witnesses.  To be valid a will does not necessarily need to be notarized, but this additional step can provide some added protection on the enforceability of the document.  A self-proving will under Idaho law also contains particular affirmations made by the testator (person preparing the will) and the witnesses and is executed before a notary.  A properly executed self-proving will is presumed in Idaho to be valid and any person contesting it bears the burden to set aside the will.

One of the common mistakes I encounter is the individual types the will on a computer, prints it, signs it, and has it notarized and believes this is a valid will.  Another common mistake is that the document is prepared and saved on a computer (not printed or signed) yet is believed to be a valid will because it outlines the wishes of the individual.  Neither of these constitute a valid will.  The content of an invalid will may be used to help guide the estate administration, but the terms will not be binding or enforceable.

A holographic will (material provision in handwriting) is one method that you can prepare the will without using an attorney.  Likewise, the internet is full of “self-help” forms you can sign.  One of the risks in preparing a will or testamentary document yourself is that the language of the document as written by you is not clear or is subject to interpretation.  For example, the phrase “I give my CDs to John” can be interpreted in several ways – a gift of certificates of deposit or a gift of compact disks.  The language that may be clear to the person preparing it is not clear to the persons ultimately interpreting and applying it.  Likewise, often forms generated from the internet contain language or terms that are not understood by the person preparing the document.  For example, some of the forms that are available distribute assets to a trust.  If you do not also execute or have in effect the trust referenced in the will, the distributions under the will are ineffective and the estate will be distributed under the laws of intestacy.  In addition, the forms that are available often incorporate the laws of a jurisdiction other than Idaho and the laws of that jurisdiction may not contain favorable provisions regarding the administration steps or duties.  Finally, the forms that are available may not properly comply with the Idaho statutory requirements for a valid will or may not establish the presumed validity of a self-proving will.  Although an attorney is not required to prepare a valid will, the cost is often well worth the saved litigation expense to interpret an improperly executed document.

This article is not intended to replace legal advice applicable to your situation and should be used only for informational purposes.  Consult with your legal or tax advisors before implementing any suggestion contained herein.

 
 
 
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PO Box 2660
Eagle, Idaho 83616

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