Wills Wills and More About Wills

In this episode, Lisa and John talk about issues relating to making wills, changing them, and revoking them.

Episode Transcript
Lisa
Welcome everyone to yet another edition of Aging Insight. I'm Lisa Shoalmire and I'm here today with my partner, John Ross. And we are here to bring you the most information that you can use as you age in place and take care of senior members of your own family. And John, how has it been since the last show that we've...
John
It's been great, as usual.
Lisa
Good, well you know we've had a lot of nice feedback from everyone out there and we appreciate that, so just keep watching Aging Insight and if there's a topic that we haven't covered yet, we will definitely get to it, so let us know. Well John, what do you think is the most common reason for someone to come in to an office like ours or to approach an attorney or legal professional about concerns with aging? 

John
Well, I would say the comment that I get most often, the stuff that most people are coming in to see me about, is wills. People are wanting to come in, they're talking about wills; should they get a will, do they need a will, will I look over their will. But it's always something about wills. And a lot times there's lots of questions about whether or not that will is valid, whether or not it was executed properly, how do they make changes to that will? And so I kind of thought maybe today would be a good opportunity to talk about some of those things as they relate to how do you make a will? What's necessary as far as signatures or notary and all of that sort of thing? How do you change it, how do you revoke it? All of those sort of issues.

Lisa
Well, that's right John. We are always hearing from clients and that is the first thing they usually ask about is about wills. And wills are something... They're a bit of a mystery in that a lot of folks in Hollywood, they say, "Well when is there going to be a... Is there going to be a reading of the will, and how does that work?" And so today we were hoping to clear up some myths about what a last will and testament does and what it doesn't do. And also just to give you, arm you with some information. So John, first thing I suppose is, what is a will in the most basic sense? 

John
Right. And so essentially when we're talking about this sort of thing, there's... All a will is, is you saying who you want to get your stuff when you die. And a will can be made by anybody, as long as they're at least 18 years or older and as long as they are competent. They have to understand what it is that they're doing. They have to know who their family members are, they have to know the nature of their estate and how they would want those things to pass along when they die.

Lisa
Alright. Well I guess one of the other questions we get... Most people generally have an idea that a will is something that they're going to, it's a written document that's going to pass down their property at their death. But then they get caught up in does it have to be a super secret magic words on that document? Is there a particular way it has to be done? So one of the most surprising things that I often share with people is that a will can be done just scratched out on a piece of paper, completely, and the testator, that's the person who makes the will, in their own handwriting.

John
Right. So something that's entirely in the person's handwriting and signed by them is what's called a holographic will. And so a holographic will, notice I didn't say that it needed to be witnessed. I didn't say that it needed to be notarized. It has to be entirely in the person's handwriting and signed. But notice, this is kind of important, for example, I couldn't let... I've mentioned that to people before and I've said, "Hey, it can be entirely in your handwriting," and the lady I'm talking to will say, "Well I'll just let my daughter write out most of what I want and then I'll sign it. And that will all be in our handwriting, right?" No, no, no, not "our handwriting." It has to be entirely in that person's handwriting and signed by them. That's a holographic will. So that's number one.

Lisa
Right. And so now, something is in someone's own handwriting, no witnesses are required, it's just that their handwriting is recognizable to be that person's handwriting is something that is key when we're talking about a holographic will. Now a holographic will can be a valid will, but there's another type of will. These days we have computers at our fingertips such that we all can jump on a computer or a word processor or much like the situation you discussed John, where your adult child could type out something for you to sign. So let's talk about a type-written will as opposed to a holographic will.

John
Right. So if a will is not entirely in the person's handwriting, then that will must be witnessed by two witnesses and those witnesses should be independent witnesses, so they're not somebody who's gonna get something out of it. So for example, if I'm leaving everything to my kids, I shouldn't have my kids as the witnesses.

Lisa
Well, a key point on that, John, is that oftentimes, when we've had that come up, a testator, the person who's making the will will say, "Well, you know, I don't have any witnesses close by but I'll get my son-in-law to witness. Now I'm leaving stuff to my daughter but I'll get my son-in-law to witness." Now, does that work? 

John
It can get real tricky. I would say, any situation like that, your best bet is to make sure that that witness is completely disinterested. Now, you'll notice we still haven't said anything about a notary. Why don't we take a quick break and then we'll come back and talk about why you notarize a will.

John
Welcome back. Today, Lisa and I are talking about wills. And prior to the break, we talked about the fact that you can make a will in one of two ways, either something that's entirely in the person's handwriting and signed by them, or if it's not entirely in their handwriting, then it needs to be witnessed by two independent witnesses, and independent meaning people who are not gonna receive any sort of benefit out of that will. I bet, Lisa, there's people out there and they're saying, "Well, what is all this business about a notary? Everything I've ever heard says 'You've gotta get that will notarized'." Why is it that we notarize wills? 

Lisa
Well, we notarize wills in a way so that when that will comes into the courthouse after that person is deceased, we have once again that outside third party who's not getting anything under the will, who is able to confirm that they viewed the testator, who is the person who made the will, and the witnesses who also viewed that testator sign the will, that that notary comes in says, "Yes. I saw them all sign and I affirm that they did."

John
Right. So essentially, what we're trying to do is we're trying to simplify the probate process later on down the road. Instead of having to go and find those witnesses and drag them up to the courthouse where they can get up there on the stand and swear that they watched the testator sign and that the testator watched them sign and that everybody watched each other sign, we have that notary. When the will is executed, the notary has everybody go ahead and swear to that and then later on, when you're probating that will, you don't have to go and find those witnesses and drag them to court. So it's not that the will needs to be notarized in order to be valid, but it can make a significant difference in how easy or complicated it is to probate that will later on.

Lisa
Right. And that's another question that we get quite a bit is someone will bring in a will and they'll show us the signatures on the document, and I'll ask about the witnesses and I will find out that maybe the witnesses didn't sign together at the same time, or that the person who made the will signed and one witness was there, and then somebody came by the house later and signed the other witness block, and that can also create problems.

John
Yeah. One key point to always remember is that the formalities that go along with executing a will are very strict and you must follow those formalities exactly or else that will can be found to be invalid later on down the road.

Lisa
Well, okay John. We've talked about the fact that a holographic will is something that is written completely in the testator's own writing; dated, handwritten, signed, can be a valid will. We have talked about typewritten will that's not completely in the testator's own handwriting. And listening to all this information about witnesses, notaries. I think, "Gee, why doesn't everybody just do a holographic will in their own handwriting?" And the bottom line is most of us are not trained to simplify the process as best it can be done if we are writing our own documents.

John
Right. And particularly when you talk about the fact that, a will in order to be valid is going to have to be probate. If you live in Texas for example, you must probate that will within four years. If you live in Arkansas, you must probate that will within five years from the time that person passes away. And that process can be smooth or it can be hard, and oftentimes the omission of even a single word can make all the difference in the world. For example, you might be appointing an executor. The executor in your will is the person who's in charge of making that will happen. In other words, when you pass away, the executor gathers up all of your stuff and then they distribute it out to whoever the will says; your heirs, your children, your spouse, whoever it is. And for example, you may want that executor to not have to do a lot at the courthouse. Not have to go back and ask that judge for permission for every little thing, in which case you might wanna make sure that executor is an independent executor and that one word, 'independent', can mean something very specific. And that's where people often times they miss out and leave things out of that will.

LIsa
Yeah, that's right. That word 'independent', just one example, makes all the difference to how quickly a probate process is completed, how expensive that process is. So, while a handwritten will may name an executor someone you trust that's going to be in charge of seeing that your wishes are carried out, the omission of that word will make a big difference to your family and your heirs.

John
Right, and I think it's a good point to make, that we're just talking about this one particular issue but there's literally thousands of examples like that. When we see people have problems with the wills, it's not because necessarily of what it says, but what it fails to say. So, I don't want anybody at home running back into the file drawer and digging out their will, looking through it and saying, "Oh, hoo, I can breathe easy, it says independent." Well, that's a good thing, but that's not necessarily the end of the story. There're still few other things that you might wanna... To deal with out there. Go ahead.

Lisa
Well, you know, one of the things people feel like, they come to the office, they wanna talk about their wills and one thing that we often have the misfortune of having to tell them, that a will is a good thing but it's only a valid will once it's admitted to the probate process. So up until that point, you have a nice written directive perhaps of your wishes, but those wishes are not considered legally binding until the will is presented to the court for probate and admitted for probate.

John
That's right. And that can take a little bit of time, it can take some expense. But that's something that people certainly need to know because oftentimes, we have seen folks who have that will and they look at it and it says "Well, I get everything. So I guess I get everything," and then they go on about their business. Finding out later after the time has gone by and they no longer have the opportunity to probate that will, because it's been too many years that that will is now invalid. So that's definitely one of those things out there that has to be done and it has to be done within a certain period of time. And anytime prior to death, you could change that will.

Lisa
That's right. I often tell clients that their kids have no expectancy of an inheritance. So, you can... You always hear the joke of, "I wanna bounce my last check when I take my last breath," Hey, I'm all for it. Just because you write something down in a will, those are your wishes at a later point at your death. In the meantime, you are certainly free to give your stuff away, sell your home, sell the family farm, do whatever you like with your stuff and your will is just back there to where, if you pass away that you've made some directions on what you want to happen with your possessions at your death.

John
Right. So at least I bet you've have had that person come into the office and they say, "Well, you know? I wanna change part of this will. Whatever I had in it is not the same that I wanted now. And so, I've scratched that part out and I've put my initials next to it. Now, that's okay, right?"

Lisa
Yeah, that's gonna be a problem. Now, we are gonna get into an issue as to, did you really invalidate under the law. You've essentially invalidated the will and you've created some confusion about what your desires are.

John
That's right. The point is, yes, you can change a will at any time. You can make changes to it, you can revoke it, but if you're gonna make a change to a will, that change must be done with the same formalities as the original. In other words, it still needs to have two independent witnesses or it needs to be entirely in your own handwriting and signed by you. So you can't make a handwritten change on a type written document, that's not entirely in your own handwriting. So even if you were to scratch it out and initial it, you would still need two independent witnesses and all of that. So much better to just make a formal change if you're going to amend a will. Now we'll talk about revoking a will when we come back from this break.

Lisa
Welcome back to Aging Insight. Today John Ross and I are here and we're discussing wills. Probably one of the most popular topics that we have questions asked of us while we are out and about in the community. And before the break, we were talking about, if you wanted to make changes to your will and you would need to execute those changes with the same formalities as you did when you originally made that will. But you know, John, sometimes it's not just about a little change, it's about making a big change including revoking that will and getting rid of it. So, how can a client do that? 

John
Right. So, if you want to revoke a will, essentially there are two ways that you can revoke a will. The first one is by a physical act. Now, that may sound strange, it's not. Simply tear it up, throw it away, burn it, destroy it, shred it. Any physical act that you do with the intention of destroying and revoking that will, revokes the will. So, that's one option.

John
The second option is to execute a second or subsequent will that revokes the first one. So, for example, many people have heard where in the first paragraph of that will it says, "I, John Ross, make this my last will and testament revoking any prior wills that I may have executed." And that sentence is put in there so that we know that this document is the one that I intend to be my will, and any others I might have written out there are revoked by it.

Lisa
And I would encourage folks, if you do revoke a will, particularly by executing a subsequent will, I would encourage you to destroy the will that you are replacing. Because what happens is these days, we're so used to keeping copies of everything on hand. Well, if we keep a copy of that old will on hand when we don't mean for its provisions to be effective, again, we can cause confusion. Especially if your new will may be at your bank deposit box, safety deposit box while your old will is sitting in the file cabinet at home. So, you know, make sure you go ahead and revoke that.

John
Well, and then the same thing goes if you're making a change to that will. If you're going to... Let's say you're gonna change who the executor is. Maybe you had named your oldest child as the executor and now you've decided that your youngest child would do a better job as that executor. Well, that's a small change and it could be something that you could do with an amendment to the will and an amendment to a will is called a 'codicil'. So you could do a codicil but think about are you going to be hurting the feelings of that person? Are you gonna create animosity? Are you unintentionally gonna create a fight between that older brother and that younger brother because one of 'em sees where they were originally in charge, and then now their younger brother's in charge, and they're unhappy about it, and you can see how bad that can go, and it could go bad really fast. So oftentimes, even though you're just making a small change, it's oftentimes still better to completely redo the will so that that first one can be destroyed and there's no records of it.

Lisa
Right, and that kind of brings another issue when you start talking about older, younger children and one of the frequent questions we get is whether or not as a parent, you are required by law to leave a certain percentage or certain amount of property between your children, how do you divide it between your children, can you write someone out of a will and I frequently have folks I speak with in the community that they talk about how one child has really been the beneficiary of lots of mom and dad support over their lifetime and they really kind of feel bad about the other children and but yet, they think the law says they have to leave something to each child. And so John, talk about are there any legal requirements, forced heirships so to speak?
John
Right, so in every state in the United States, there is absolutely no requirement to leave any child, or spouse, or anything, you can leave your stuff to whoever you want in any state in the country except for Louisiana. Louisiana still does have something called 'forced heirship' where you really can't disinherit spouse or child. But in every other state: Texas, Arkansas, even Alaska, you can leave your stuff to whomever you want and whether you... A lot of times, one thing I'll get is people will say, "I've heard that I need to just leave 'em a dollar."

Lisa
Yeah, I get that a bit.

John
As a general rule, that's actually a bad idea. You don't have to leave them anything at all. And so if I don't have to leave them anything at all, why leave them a dollar? If I give them a dollar, what I have given them is not just a dollar but a right to participate in all of the probate proceedings, a right to an accounting, a right to an inventory, a right to be present and have notice of any hearings and proceedings, and imagine how much trouble that person can cause because you left them a dollar. If you're gonna cut somebody out, cut them out. Now you need to do it carefully. For example, let's say I have three children, I don't wanna just leave everything out to them. I still wanna mention them and just say I'm not leaving them anything.

Lisa
Well as you can see, this topic is very complicated and I'm sure we'll come back and revisit it, and we appreciate you watching yet another edition of Aging Insight. See you next week.

John
Bye-bye.


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