Getting back to the basics about wills
December 1, 2023 | View PDF
I enjoy watching the presidential debates every four years. I think the first one I saw was Carter-Ford in 1976, when I wasn’t even old enough to vote.
But there is a common mistake that candidates make in these debates. They assume that everyone watching knows about all of the stuff which the political reporters have been talking about all week. A lot of the most critical swing voters —the ones who are actually watching to decide who to vote for, as opposed to just rooting for their favored candidate—have not been watching the news during the week, so they don’t follow what the candidates are talking about.
For instance, in 2016, John McCain kept making references to “Joe the Plumber,” without actually explaining who Joe the Plumber was. He had a chance to score political points, but he missed a lot of people.
Nearly all of us do that in some fashion. If we have a lot of information about a particular thing, we tend to forget that other people don’t have the same information. In estate planning, that means we often assume that clients understand the basics about, for instance, how a will works.
So, since my last two columns were about fairly technical stuff, I thought I would take a step back today and focus on some basics. Here are the most common questions I hear about wills:
What does a will cover? It is actually easier to answer this question by saying what a will does not cover. It does not cover anything that has a designated beneficiary, like a bank account that has a POD designation, or a property that has a transfer-on-death deed. It does not cover items that are owned jointly with right of survivorship. And it does not cover anything which is not in your name, for instance assets in a trust. The will covers all the rest of the estate.
Example: I leave a will which says that my account at First National Bank goes to Junior, my account at Edward Jones goes to Susie, and my pickup truck goes to Buford. However, I put Susie on the bank account as a joint owner so she can help me pay the bills, and the truck is also jointly held with Susie. Despite what the will says, Susie would get everything.
Does a will override a trust? Yes and no. If the assets in question are in the trust, the will doesn’t apply. If I quitclaim my cabin to the trust, and the trust says that the cabin goes to Buford, but I say in my will that the cabin goes to Junior, the trust effectively overrides the will. Buford gets the cabin regardless of what the will says.
Does a will need to be notarized? It does not have to be, but it does if you want it to be “self-proving.” You want the will to be self proving, partly because it avoids an unnecessary hearing at the beginning of the probate. More importantly if anybody challenges the will, if it is not self-proving, the executor has to prove that it was validly signed. That can be difficult when it is years later and the witnesses can’t be located or don’t remember.
But no, the will does not have to be notarized. It does need to be signed in front of two witnesses. I have seen people type up a will, and then sign it in front of a notary but without witnesses. That is not a valid will.
Can a will be hand-written? Yes, and if the material parts of the will are in your own hand, it does not need two witnesses. That is called a “holographic will.” It is not self-proving, though, so it still leaves the burden on the executor to prove up the will.
(For my fussier readers, I do understand that hand-written, i.e. cursive, is not the same as written in your own hand. You can print it by hand, and that can still be a valid holographic will.)
Normally I would never recommend relying on a holographic will. During the first part of the pandemic, when it was difficult to arrange witnesses, I sometimes had to recommend that clients write up a holographic will as a temporary fix. If you did that, you should replace it as soon as possible with a regular will.
Can you write on your will? No, good heavens, no. Writing on your original will invalidates it. Don’t do that!
Does the will have to be filed with the court? Not in this state. In some states, a will is not valid unless it was filed with the court before you died. In Alaska there is an optional system to deposit your will with the court system, but it is not required.
If you don’t file your will with the court, you need to make sure it is safely protected. If your heirs cannot find the original will after you are gone, they will have to jump through a lot of extra legal hoops to try to get a copy accepted.
Is there anything else a will covers? If you have minor children, the will can dictate who will be the guardian of the children if neither parent can take care of them. That is really important, because it can stave off disputes between family members over who will care for them. It would be bad enough for your children if they lost their parents, but imagine they go from that trauma right into being stuck in the middle of a custody dispute. So if you know any parents with minor children, encourage them to get their wills done.
Vince Lombardi once started a team meeting by holding up a ball and saying “gentlemen, this is a football.” John Wooden would start his first practice every year by teaching his players how to put their socks on the right way. The first thing they taught us in the army was how to line up properly. Sometimes you need to start with the basics.
Kenneth Kirk is an Anchorage estate planning lawyer. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult a professional who can take all the facts into account. And that way, you’re not basic.