Updated: Oct 6, 2021
Dear Mr. Premack: I live in Washington. I have property here and in Texas, which I inherited. I do not like lawyers. I am an accomplished college graduate and want to just write my own Will. I found random information on the net. I was told specifically about you and that you were writing these articles (I see now for years) and someone suggested I write you and learn about writing my own Will. - P.O.
Most states, Texas and Washington included, allow two types of "Last Will and Testament", each with its own technicalities. The two types are: 1) a handwritten (holographic) Will, and 2) a formal (attested) Will.
In Texas, a handwritten Will is valid when it is 1) written entirely in the Testator’s own handwriting, 2) contains the date it was written, and 3) is signed by the Testator. Witnesses are not necessary.
By contrast, in Washington all Wills must be witnessed. When the Washington-state Testator signs, two witnesses must also sign the Will or an attached notarized Affidavit. If the Will is handwritten it must be witnessed. If the Will is typed it must be witnessed. The only exception is a “foreign Will” - one made legally in a state like Texas which allows unwitnessed holographic Wills – for a person who later moves to and dies in Washington with only that foreign unwitnessed holographic Will.
The real problem with a handwritten Will is that the Testator is not trained in the law and may say the wrong things or leave out important instructions. For example: 1) If any part of a Texas holographic Will is not in the Testator’s handwriting the Will is not valid; 2) A fill-in-the-blank Will form that asks only for a signature without witnesses is not valid in either state; 3) The plain meaning of certain words may not be the legal meaning attached to those words when interpreted by the court. 4) The handwritten Will may omit chances to save time and money.
With all of those difficulties, a handwritten Will is still better than no Will at all. If you do not currently have a Will, follow these easy steps: 1) take a blank sheet of paper, 2) in your own handwriting identify yourself, give the date, and describe where you want your assets to go when you die, 3) sign the handwritten Will before two witnesses if in Washington, and 4) contact me for an appointment to make a formal Will because owning property in multiple states or not, you want your assets to pass smoothly.
A formal Will written by an experienced estate planning attorney based on your instructions is the best method to utilize (by which I mean the least expensive in the long run). A formal Will is typically typed, and it must be dated, signed by the Testator, and signed by two witnesses in the presence of and at the request of the Testator. When written by your lawyer, the formal Will should also give your money saving instructions regarding:
A notarized affidavit of self-proof so that the witnesses do not have to testify in court after you die;
Appointment of an Executor (Personal Representative) with alternate choices in case the first choice is not available, including waiver of the expensive bond otherwise required for the Executor;
Identification of selected heirs and alternate heirs if the first choices are not available, and what each person is to receive;
Care for any under-age or disabled beneficiaries, if any, by including trust provisions to manage the inheritance and control spending by those beneficiaries;
Reduction or elimination of taxes. Though Texas has no inheritance tax, Washington imposes an inheritance tax on estates exceeding $2,193,000 in value. The federal government imposes an estate tax when the estate exceeds $11.7 million in value. The Will’s plan can contain provisions to deal with those taxes.
There is a third type of Will, called a nuncupative (spoken) Will. In Texas, these were based on an 1879 law and could not transfer more than $35. With unusual wisdom, the Texas legislature repealed the use of nuncupative Wills in 2007. In Washington, nuncupative Wills are still legal and allow 1) someone in the military or merchant marine to pass their wages and any personal property, or 2) any other person to pass personal property not exceeding $1000 in total value. However, the spoken Will is valid only when the speaker is near death, “bids (two people) to bear witness that such was his Will,” they hear the spoken instructions and later reduce the words to writing, that writing is offered in court within 6 months after it was spoken, and all heirs are notified of their right to contest. So, nuncupative Wills are rarely used and never recommended.
One last consideration for you, because you own property in Washington and Texas. When you die, any Will must be probated to be given legal effect. A probate in Texas only affects Texas real property and a probate in Washington only affects Washington real property. So, your Will may have to be probated twice, which is an avoidable and expensive effort. I suggest you look into a revocable Living Trust to hold your real property in both states to avoid the need for double probate.
Column published on October 5, 2021.
Paul Premack is a Certified Elder Law Attorney for Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. To contact us, click here.