Inexpensive Handwritten Wills and Other Myths

In the past few years, we have handled several estates which included handwritten Wills. It appears that more and more folks are drafting their own Wills, and the reasons are understandable, sometimes.

First, if you write your own Will, you don’t have to pay a lawyer to prepare it for you. Second, you increase the level of privacy if you write your own Will with no witnesses and no lawyers present. Many states including New Jersey have relaxed their laws which for years required that all Wills be witnessed by two people and a notary. The law changed because many folks were writing their own Wills and the amended probate laws allowed for the possibility that those documents could be valid as Wills. But how can a handwritten Will be enforced as a valid Will?

Under New Jersey law, a handwritten Will can be valid as a “writing intended as a Will” if the material portions of the document are in the handwriting of the decedent and signed by the decedent. I suspect that most people who write their own Wills know that their signature is required on the handwritten document. But those who draft their own Wills do NOT realize is handwritten Wills ALWAYS require approval by the Probate Court because the law does not allow the County Surrogate to probate handwritten Wills. If a family member presents a handwritten Will to the County Surrogate and asks that it be probated, they will be told to file papers in probate court.

So, if writing your own Will requires probate court approval, what does that mean as a practical matter? It means that the proposed executor under the handwritten Will – assuming that the handwritten document named an executor – must prepare and file court papers asking the probate court to direct the Surrogate to admit the Will to probate and appoint an executor of the estate.

The required court papers are a Verified Complaint and Order to Show Cause, copies of which must be sent to all individuals named as beneficiaries under the handwritten Will and to those closest next of kin who may have been omitted from the document. And, how long will it take for the probate court to hear an application to admit a handwritten Will to probate? Depending upon the caseload in the county where those court papers are filed, it may be many months before the court will rule on the validity of the handwritten Will, and the court, at that time, will likely require testimony from persons who can attest that the document bears the handwriting of the decedent.

In a best case scenario, if no family member contests the court application and the probate court’s calendar is relatively light, the proposed executor whom we assume was named under the handwritten Will may be appointed within about three months of the date of death. In a worst case scenario, such as a situation where the document does not name an executor or an interested party contests the application, the estate is essentially “frozen” with no one having legal authority to act for a year or more. In that case, no one has legal authority to access the estate assets or has the ability and funds to pay the estate’s debts.

Even in the best case scenario, how many non-lawyers can file the appropriate Verified Complaint and Order to Show Cause without legal help? Probably not many, but for those fortunate few who can pull together the applicable court papers without hiring a lawyer, the court filing fees will cost about the same as the cost many lawyers bill to prepare a Will which will NOT require court approval.

Simply put, the handwritten Will delays probate, thereby stalling the administration of that estate for many months, and will cost that estate several thousands of dollars more than the legal fees to have an attorney prepare the Will in the first place. Indeed, most Wills prepared by lawyers can be probated by the family member executor at the Surrogate’s Office without any assistance from a lawyer.

Those who choose to hand write their own Wills in an effort to avoid legal fees would be well advised to rethink that plan. They may avoid estate planning legal fees during their lifetime, but their heirs will or estate will bear a heavy burden of legal fees because they are forced to go to probate court. It is certainly true that handwritten Wills can be valid and enforced, but since that validity must come from a court, writing one’s own Will is clearly not the inexpensive, simple solution that many believe it to be.