Tag: Witnesses

Video

Introduction: Writing Your Own Will?

Good morning, folks. This is Andy Stautz at Stautz Law. I’m an Indiana estate planning and probate attorney, and today I am here to talk about DIY wills and how they fail.  

And this talk is prompted by my recent experience. I’ve had several estates in the past few weeks where there have been complications, expensive and unforeseen complications arising from a decedent who left a DIY will, right?  

So these are people who thought, oh yeah, well, you know, I can write a will, I can do it myself, okay? And they fail in all sorts of different ways, but there are a few that are the most common.  

Can You DIY a Will?

So let’s start at the start. Can you write your own will? Yes, you can. Obviously, and there are now lots of websites online where you can download a will. It’s an option, it’s out there. But there are some traps. And I think you should, it’s worth paying a professional to do for you to make sure you don’t fall into one of these traps.  

Problem #1: No Witnesses!

So what am I seeing? What do I see? Number one, most obvious is the will was never witnessed. Okay? So if you just write on a piece of paper, you know, the house goes to Jerry and you sign it, that’s great. You know, hopefully your heirs will honor that. But they don’t have to. It’s not a valid legal document. We can’t present it to a court and say, this is his last will and testament because Indiana law requires two witnesses. [That statute is I.C. 29-1-5-3]

Problem #2: Interested Witnesses

Which brings me to the second obvious problem. A lot of times it’ll be, I leave my house to Jerry, signed, you know, Bob and Jerry. And it’s like, you can’t do that either, okay? A witness who’s interested, you know, the guy who gets stuff under the will can’t be a witness to that bequest. Okay, it doesn’t necessarily invalidate the whole will, but Indiana law makes an interested witness invalid as to the bequest, you know, as to the gift he gets. So giving the house to Jerry and signing by Jerry, that’s no good. [That statute is Ind. Code 29-1-5-2(c)]

What are some other common problems? Those are probably the two most common.

Problem #3: Vagueness, Ambiguity

Vagueness is another common problem I see. It’ll say, you I leave my car to Jim and it’s, you know, maybe that writing is dated years ago. It’s like, okay, well, you know, which car? What are we doing here? And it’s a bigger problem for real property. I mean, a car, no big deal. But, you know, land records are more formal. The recorder has to accept the evidence that the transfer happens. So that’s another problem.  

Problem #4: No Self-Proving Affidavit or Consent to Unsupervised Administration

Finally, are things that aren’t necessarily like fatal to the will, but are annoying to the heirs who have to administer it. And probably the most annoying is, you know, no self-proving affidavit. So if you just sign the will with two witnesses, it’s valid. But to get it admitted to probate, one of the witnesses, one or more of the witnesses has to come forward and swear that it’s actually the will.  

You know, you can avoid that — and all my wills, all professional wills avoid that by adding a self-proving affidavit to the end, which is just some magic words. But what it does is it excuses you from having to bring the witness back at time of probate. So just a little trick.  

And finally, I’ve never seen a DIY will with a consent to unsupervised administration. But if you’ve got cooperative heirs, that little consent saves you like thousands of dollars in probate. Because it just, it lets you, it lets you use the unsupervised procedure, which is so much faster, so much easier. than supervised probate.  

Conclusion: Save Time and Money, Do It Right the First Time

So those are some common problems. There are more bizarre ones, but by far the most common is failing to properly execute it. And then the rest are subsidiary problems. So I think you should hire a professional if you’re thinking about getting a will done. It’s not that expensive. It’ll save you lots of money in the long run.  

You know, I don’t care, I suppose, because, a messy probate is more expensive and that’s usually in legal fees. So it’s for your own good. Get a pro to look at it beforehand and save yourself trouble later. But that was just a quick talk about how these DIY wills go wrong and hopefully give you something to think about. Thanks. 

Bye.