People often ask me whether they can write their own will. After all, they know who should receive their property and there must be a form for a will available on the internet. My answer to their question is this: “Sure, you can write your own will; people writing their own will is great for my probate business because it often costs more in legal work to fix the problems with a do-it-yourself will than it would have cost to draft a will or the other appropriate estate planning document in the first place.” As you will see, the question you should be asking is not whether you can write your own will, but whether you should write your own will.
Louisiana law specifically allows someone to draft their own will; this type of will is called an olographic will. To be valid, an olographic will must be entirely written, signed and dated in the testator’s handwriting. To probate an olographic will, two witnesses familiar with the testator’s handwriting must testify that they know the will was written by the testator in his own handwriting. While this usually makes the will probate process a little more difficult and costly, a handwritten will can be valid in Louisiana.
Although you can write your own will, the Louisiana Civil Code is often confusing in this area. This makes it difficult for those who do not practice law regularly to be able to effectively understand and use it appropriately. In fact, even Louisiana lawyers who do not practice in the estate planning area regularly are often reluctant to write wills as estate planning often requires specialized knowledge of tax law, property law, debtor-creditor law and community property law. Also, software that is available to attorneys to draft wills in other states will not work in Louisiana because our laws are so much different than that of other states.
Wills also often include many “terms of art” that if not used carefully, can have much different implications than what was intended. Several years ago, I was involved in a case where a wife wrote her own will and left all of her “money” to her husband. They had no children together. Although she had several hundred thousand dollars worth of “savings bonds,” her siblings sued her husband and argued that the savings bonds were not “money” and therefore they should get them instead of him. This case was tied up in court for many years before the judge finally ruled that the husband would receive the savings bonds. Unfortunately, it cost him a lot of time and money to receive what his wife wanted him to get. This time and expense could have been avoided had she seen a qualified estate planning attorney to help with her will.
An AARP article actually advises against “Do It Yourself” wills. As the article points out, if a will does not conform to legal requirements, your property may be distributed as if you had no will at all. In that case, having a defective will could mean that the people you want to receive your property do not receive it. Even worse, it could mean that people you don’t want to receive your property (like an ex-spouse) may have control over property that passes to your minor children.
While we are all looking for ways to save money these days, drafting your own will is probably not where you should try to take matters into your own hands. A properly drafted will places your property into the possession of those you wish to receive it, when you want them to receive it and how you want them to receive it. It should also minimize unnecessary administrative costs and tax liabilities for your heirs. This task should be left to trained professionals to make sure that the wealth you have accumulated throughout your life is passed down according to your wishes. The peace of mind you get from knowing your legacy is protected will be worth the extra expense.
Mrs. Melancon has engaged in the practice of law in Louisiana for the past 18 years. The primary focus of her practice is estate planning, special needs planning, elder law and probate. She is also accredited by the VA to give advice regarding veterans’ benefits. For more information, please contact her at 225-744-0027. You may also visit her website at www.LegacyCenterLa.com.