Can’t I Just Write My Own Will?
Americans (and especially Michiganders) tend to be a do-it-yourself crowd. Why should we pay for something we can do ourselves? A plumber would probably answer that the cost of fixing a botched DIY job tends to be a lot more than hiring a professional in the first place. For a beneficiary trying to resolve a botched DIY estate planning job, though, the stakes can be much higher. In worst case scenarios, a person’s dying wishes could even be rendered moot because of a failure to properly record them.
But can’t I just do it myself?
Simply put, yes, you can write your own will. A will drafted both for and by one person (the “testator”) is called a “holographic” will and is legal in Michigan. Typically, wills have to be signed and then witnessed by two other individuals to be valid. A holographic will, however, as long as it is signed, dated and actually written by the person (in her own handwriting) may be considered valid even if it isn’t signed.
Although the law permits holographic wills, a holographic is more susceptible to attack. Like with contracts, wills should be drafted to protect parties in case things go wrong, not under the assumption that things will go right. What could go wrong when dividing property among heirs when the grantor is no longer around to settle disputes?
For example, individuals sometimes want to “disinherit” potential heirs. An estate planning attorney will familiarize themselves with the situation and include language in a will or other document to give effect to such a decision. Without this type of language, a potential heir could attack a will, possibly even have it set aside, on grounds that they were “accidentally” disinherited.
Another ground for attacking a will is to argue the testator lacked the mental capacity to create a will. If the testator wrote the will herself and chose not to discuss her plans, it can be difficult to respond to such an attack on the testator’s mental capacity. A will drafted as a result of a consultation with an attorney and signed by witnesses, however, creates a presumption of competency that is hard to rebut.
Another concern is undue influence. The law recognizes that the elderly and infirm are particularly vulnerable to others putting pressure on them to act in ways other than what they want. An unscrupulous caregiver, for example, might insist that the testator devise more to that caregiver through threats of withholding care (or even love and affection). Because of this legal recognition, even good and scrupulous caregivers can be vulnerable to accusations of undue influence by a disgruntled relative. Again, if an attorney is part of the estate planning process, that attorney’s work will create a record of the testator’s actual intentions and circumstances, making the disgruntled or disinherited’s attack much more difficult.
Estate planning is rarely easy. It’s difficult to contemplate the loss of a loved one and it’s common to feel anxious about the costs of formal estate planning. But peace of mind about the division of one’s property after one’s death does not have to be a great expense.
At Noud & Noud, we always consider what a client’s actual needs and means are and tailor our work to provide the best legal advice and advocacy possible for an affordable price. Don’t be like the homeowner who discovers too late how complicated plumbing can be! Paying the smart expense at the beginning can save untold money and heartache.