Last-Minute Wills….What Counts?

by Gray Reed & McGraw
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Monitoring his emails and gazing at the sights on Elafonisi beach in Crete, attorney Al B. Wise receives a desperate 4:30 a.m. (Texas time) email from his best client Betty Makit Williams – “Going under Slim Cutter’s knife in four hours for emergency surgery. No will. Can you get me one in case I don’t make it?” Sadly, Betty Makit did not make it. Did her will on a Post It?

Yes, at least in Texas. Knowing that a formal will was out of the question, Al B. Wise advised Betty Makit to write a holographic will – her last will and testament, completely in her own handwriting and signed by her. In addition to a will on a Post It note, Texas heirs have successfully probated wills written on a bedroom wall and on the fender of a vehicle. Even a Canadian will of a man trapped underneath was successful by probating the tractor’s fender as the will. About half of the states permit holographic wills.

To Create

A holographic will can be useful in an emergency situation when you have little time to provide for your loved ones. In Texas, it is considered valid, even if you write it on the back of an envelope. To create a valid Texas handwritten will it: must be COMPLETELY in your handwriting (none typed or written by someone else); and must be signed (recommend dated). BETTER to: account for all property like “all to _____;” state who you’d like to serve as executor of your estate; state that it is your “Last Will and Testament;” and, even if later, attach a separate piece of paper (an “affidavit”), and write on it that you were of “sound mind” when you signed the will, that you were at least eighteen years old when you signed the will, and that you have not revoked the holographic will that is attached and dated __________.

Problem Defects

Routinely, handwritten Wills become the subject of litigation after the Testator’s death when another person writes a portion of the Will; when there are obvious mistakes related to unclear wording or intentions (beneficiaries are identified only by their first names); or when provisions are unclear. Even if entirely written by Betty, a handwriting expert might be required to compare samples of her handwriting to her handwriting in the Will to confirm validity. All of these offer opportunities for the family to fight over the correct interpretation – fights that are both costly and time-consuming and the likely effect of tearing families apart.

Tilting the Scales in Your Favor

Not surprisingly, your best bet is to work with an estate lawyer and your accountant. Even though easier and cheaper for you, a handwritten will is NOT easier and cheaper for your loved ones. Dying without a will or even with a handwritten will almost certainly costs more money. The stress, wasted time, and frustration for your loved ones translates to an almost certain cost – that may well exceed out of pocket expenses.

See prior Tilting article – Where There’s a Will, Is There Always a Way? addressing when an on-line will might work for you, and when you may want to reconsider the “savings.”

Texas Bar Books offers “Wills Road Map: Practical Considerations in Will Drafting.”

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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