Here's what you need to know about handwritten wills
Getting your affairs in order is always a good idea to ensure your loved ones are taken care of in the event of an untimely passing. Some may wonder if they can make arrangements on their own and whether a handwritten will is legally binding. Estate planning is a complex process, and requirements vary from state to state regarding handwritten wills. Here's what you need to know before you get out the pen and paper.
Handwritten wills: what the law says
When it's time to draft your will, many wonder if a document they write out by hand and sign will hold up when it's time to settle your estate. In uncertain times or emergencies, a will may be hastily drawn up by an individual. This matter has become of particular interest amid the global pandemic.
But penning your own last will and testament in an emergency is not an ideal situation. Your wishes are far more likely to be carried out when you consult with a trusted attorney long before declining health or an emergency puts you in a position to have to write a will in a hurry. The best estate planning involves careful consideration, planning and forethought. It's a process that allows an individual, couple or family to talk through their final wishes and explore options with help from a trusted attorney to determine what's in the best interest of the parties involved.
Yes, a handwritten will is legal. But...
While the short answer to this question is yes, a handwritten will is legal; there are some matters to consider carefully while developing your plans. In some states, a will that the individual simply signs may stand up to legal challenges. Let's explore the particulars of Wisconsin law.
Under Wisconsin law:
- A valid will requires two witnesses. To ensure your wishes are truly carried out, it's also advisable to have a notary public witness. We highly recommend you work with an attorney to ensure your will is clearly communicated and not easily disputed. A best practice is to enlist the help of witnesses who are competent to testify when they witness the signing and who do not stand to benefit from the terms of the will. It is also a best practice to have the witnesses physically present for the signing of the will, rather than present via video conference — which may or may not hold up in court.
- By law, you must have the capacity to create a valid will. To have capacity, you must be 18 or older. You must also be able to prove you understand that you are creating a will and that you have not been coerced to do so.
- A holographic will is not valid in Wisconsin unless the individual who wrote the will is a resident of a state that allows for holographic wills. A holographic will is a will that is handwritten and signed without witnesses present.
- When it is time to settle your estate, Wisconsin law calls for at least one of your witnesses to appear at a court hearing and make a sworn statement.
- If you wish to avoid a court hearing, you must attach a self-proving affidavit to your will. You can do this in a couple of ways: work with a notary public to notarize your will and administer oaths when you and the witnesses sign the document or present the will to the notary public with your witnesses. When time is of the essence, and a notary public is not available, the latter option affords you a little flexibility.
In May of last year, Wisconsin passed a remote online notarization law due to the pandemic, but the law does not apply to wills. But, of course, laws are constantly evolving, so consulting with an attorney is your best bet for ensuring your wishes are carried out.
Is it time to do your estate planning?
When it's time to get your estate plans in order, we can help. Our attorneys are experienced in estate planning and the legal considerations around drawing up your will. With an attorney on your side, you can rest assured your loved ones will be taken care of, and your wishes will be carried out as you intend. When the stakes are so high, leaving your estate settlement to chance with a handwritten will can create an unnecessary burden for those you care about most. Contact us to learn more about how we can help with estate planning and writing your will.
By Brian Weber, attorney at Johns, Flaherty & Collins, SC. For an estate planning lawyer in Holmen WI, call him at 608-526-9320.