Do I Need an Attorney to Draft My Will?
For most people getting a Will drafted up can be one of the most terrifying experiences that you have to go through. The main reason is because it forces you to confront your own mortality and choose how you would like your assets divvied up. It is very morbid. In addition to that, most attorneys charge $500 or more to draft a simple boilerplate Will. Many people do not have an estate plan complex enough to warrant an attorney coming in and helping them draft the Will. However, the problem is that only attorneys are legally allowed to draft Wills so there is no real cheaper alternative (unless you use Legalzoom which I would absolutely not use).
While it is almost always advisable to get an attorney’s opinion before engaging in any activity that can have binding legal implications if you are determined to draft a Will without legal advice, you can by self-drafting a Holographic Will.
“What is a Holographic Will?” is a question you may be asking yourself. Unfortunately, the answer isn’t as cool as the name suggests. A Holographic Will is a Will that is handwritten and signed by the testator and dated (while this is not a requirement, many complications can arise if it is not dated). Further, the writing must state that it is the intention of the testator that the handwritten Will act as their Last Will and Testament.
Why is this helpful? Because all other Wills must be witnessed by two people. The reason why this is deemed unnecessary for Holographic Wills is because the entire point of the witness requirement is for fraud prevention, but that concern does not exist for Holographic Wills because the testator’s own handwriting allows for the veracity of the Will to be verified (whether that logic holds true in modern culture is another discussion).
Because of this exception to the normal Will rule, if you want a Will, all you have to do is draft one. However, there may still be reasons to have an attorney draft your Will anyway, for your own piece of mind. Most people are naturally suspicious of Holographic Wills and they are generally contested as being fraudulent whether they are valid or not. Further, if you create a Holographic Will, there will only be one copy that can be used in court. Which means it is incredibly easy for someone after your death to destroy the Will without anyone else knowing about it, or in some other way manipulate it. Whereas most attorneys keep and original copy (meaning it can be used at court) of all Wills they draft. Further, if the Will is contested the drafting attorney—who carries great sway with the court—can testify to your mental capacity and state of mind at the time of execution.
Therefore, a Holographic Will is much easier to draft, but makes it much more difficult for your heirs to defend.