Over 90% of Americans die without a will. This is mostly because it costs money to go see an attorney and have one drafted (usually around $1,500). This is something your lawyer doesn’t want you to know: you can make your own will. Now, there are some situations where receiving legal guidance is necessary, but most people don’t really need special guidance to make a will.
Making your own will (don’t type it!)
If you want to give yourself a headache you can try and read Cal. Probate Code § 6111, which will also tell you to read § 6110, will refer to holographs, and generally be confusing. But this is what you need to know to make your own will:
1. Write everything in your own handwriting
Everything needs to be in your handwriting. Everything. Don’t type your will. Many people type their own will and sign it…only to have the court invalidate it; then you die intestate.
2. Sign at the bottom
I think this is kind of obvious, but you need to sign it. In California you can sign it pretty much anywhere, but sign it at the bottom, because many states require the signature to be on the bottom of the page. The law of the state where you are domiciled at death applies—and who knows if you are going to move or not. So don’t be creative and sign it in the margin; sign it at the bottom.
3. Date it
Write the date on your will. Make it clear. It doesn’t really matter if you do it like a European (day/month/year), like an American (month/day/year) or in full (i.e. October 13, 2010) as long as the court can figure it out.
4. Keep it simple
Don’t be fancy. Don’t get tricky. If you want to leave your estate to your kids, only so long as they go to church on Sunday, this is tricky. Don’t use language you saw online like “if anyone challenges this will you get $1.” Keep is simple and in your own words.
5. If you can’t say anything nice, don’t say anything at all
Don’t say: “I leave my estate to my son, but nothing to my daughter because she is a no-good drunk.” There is this thing called “testamentary libel” and other issues can arise if you say nasty things in the will. You should avoid saying anything bad about anybody if at all possible.
When you need an attorney
I just got done telling you that you don’t need an attorney to make a will, but these are some of the situations in which you do need a will:
1. You have a sizeable estate
If you have a sizeable amount of wealth, you will want to take certain steps to avoid taxation of the estate. Writing your own will is probably not in your best interest. Hiring an attorney to create a trust and avoid taxes if at all possible is probably in your heir’s best interest.
2. You want to get tricky/creative
You really want to be creative. You only want your son to inherit “if he marries a Jewish girl” (there are hundreds of cases with that provision believe it or not). You only want your daughter to inherit if she finishes college. There are so many ways to screw this provisions up that you need an attorney.
3. People are going to contest the will (you have a family of jerks)
Your family is litigious and you know that your kids are going to file law suits to duke it out. There are certain steps that you can take to encourage them from fighting over your estate or to make it harder for them to challenge your will.
4. You want to amend a previous will
You already had an attorney make a will, but you want to change it. A handwritten will saying that “your revoke all previous wills, codicils, and testamentary instruments” will probably suffice, but it is really easy to make mistakes when amending previous wills. Go see an attorney if you already have a will and you want to make changes.