Do I Really Need A Formal Will? Can’t I just Write Down My Wishes?

by Scott Legal, P.C.

Many think that their wishes will be taken into account when they die even if they do not have a Will.  Some think that your orally expressed wishes may have some effect.  Others feel that their hand written or typed instructions are sufficient to distribute their assets in accordance with their wishes.  Regrettably they are all wrong and writing down or typing your wishes has absolutely no effect in many States.  Instead, the legislature in the State you live in will decide how your assets are divided if you do not make a “formal” Will.  What this could mean is that your assets could be distributed to people that you intensely dislike.  Moreover, without a carefully constructed Will close friends and some close family members could be completely excluded from both receipt of assets and guardianship of your children.  Click here to get a Will Questionnaire sent to you and a White Paper on the top 10 reasons to get a Will.  In addition, here are some things to consider and some good reasons why you should consult with a lawyer and make a proper Will.

What is a Will & Why is a Will Important?

A Will is a legal document that describes exactly what you want done with your assets and minor children if you die.  Designing and implementing a Will is most effective when completed before a crisis occurs as inadequate preparation for life transitions and delayed response often lead to increased costs and loss of control over important personal and financial choices.  A carefully drafted will is a great way to protect your family, to avoid unnecessary estate taxes and to carry out your wishes with regard to your estate.  Another important reason to have a Will is so that you can specify exactly what you would like done in the event you experience severe health issues that leave you incapacitated.  Do not leave these difficult decisions to family members who are already going through a high amount of stress because of your illness.

What happens if You Die Without a Will?

If you die without a Will your assets are distributed in accordance with the laws in your State. As the person who makes a Will is called the Testator when you die without one you have died Intestate.  The Intestate laws attempt to approximate what most people would want when they die but it is hard to imagine that a group of legislators could mirror your wishes when it comes to such a personal decision.  Notwithstanding the fact that your wishes will be ignored, your assets will be divided up based on the way the government says they should be divided up regardless of your personal feelings towards those who will receive your money.  Do you have an Aunt that raised you like a mother?  A favorite brother?  A best friend? A close relative that perhaps you are not fond of?  If you have any of these, you are out of luck because your assets will be divided up and some of these people will not see a penny and others that you may despise may inherit your fortune.  Finally, if you have small children, the Government will decide who should raise them and your wishes will not really be taken into account.

Is a Will that I handwrite or Type Effective?

The short answer is No in many States.  In New York for example, a Will that does not adhere to the strict Will formalities is invalid and even though the document you create may clearly express who you want to give your money to, your instructions are completely ignored.  The idea that the government would ignore your wishes even if they are known may sound odd but most States favor the formality over the risk of fraud.  You may have heard of a handwritten Will referred to as a “holographic” Will and these Wills are often not worth the paper they are written on.

To illustrate this, let us say that Mary is 58 years old, sane, and she writes down (or types) on a piece of paper the following.  “I Mary Watson being of sound mind and body wish to leave my house to my beloved Sister Karen Smith and the money in my Bank account to my best friend John Heave who took care of me for years when I was ill, my car to my grandmother Susan Clark and the rest of my belongings to my non blood related stepson Jason Fishbind.”  Let us also say that her husband is deceased and she also indicates in her “Will” that “I would like to disinherit my daughter Samantha because she betrayed me and I do not want her to get a penny.”  Regrettably for Mary, her assets would be divided as if this letter did not exist.  For example, if she wrote this in New York, most of the people she wanted to give money to would not get a cent.  Her best friend, nothing, the grandmother, nothing, the sister nothing, the stepson (unless he was adopted) nothing. In fact, the ONLY person who would receive her entire estate is the daughter Samantha that Mary wanted to disinherit.  What this means is a Will that does not adhere to the strict formalities such as signing in front of two witnesses, indicating to the witnesses that it is a Will that is being signed, and other formalities, is useless.

If You Do Not Have Many Assets Should You Bother with a Will?

Almost everyone should have a Will.  I say almost as there may be some who really do not care where their money, property or children go and for these people who truly do not care, a Will is not needed.  Consider this case of a Mother, Father & 21 year old son who have very modest assets.  Say Mother dies in New York and does not have a Will.  Let us also assume that the house that mother and the father lived in was in mother’s name alone, has a value of $100,000 and that the father and 21 year old son do not get along well.  Also let us assume that the father, mother and son do not have any other valuable assets.  Many may see this situation and think that if one parent dies, all assets would automatically transfer to the surviving spouse.  In New York the statute actually says though that the first $50,000 goes to the spouse and the balance is divided between the surviving spouse and the children.  In this case, we have a house that is worth $100,000 so the father would get $50,000 and the son (the son that the father does not get along with) and the father would split the remaining $50,000.  Unless the father has $25,000 around to “pay-off” the son, the father could be forced to sell the house.  All of this could have been avoided with a very simple Will.

Do I need a lawyer to make a Will?

Given the importance of a Will and the consequence of executing the Will incorrectly, you should get a lawyer.  Also, estate planning is a tricky area and there are many things a good lawyer can point out to you that will ultimately save you far more than you will ever pay the lawyer.  People are often taken in by a false sense of security associated with low cost pre-packaged Wills and either execute them incorrectly or include pre-packaged boilerplate provisions in their Will that do not have anything to do with their situation.  Contact Scott Legal Services, P.C. today and let us help you with your Will needs.  Click here for more information and pricing.  You can also call us at 1-888-529-2964 or email us at

Click Here for PDF Version

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.

© Scott Legal, P.C. | Attorney Advertising

Written by:

Scott Legal, P.C.

Scott Legal, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.