Creating a will is not something anyone looks forward to doing. And the idea of going to an attorney may be frightening and filled with anxiety. What if you can’t afford the cost? You may not have much in property and assets – why get an attorney involved? Can’t you do the will yourself?
Although the idea of writing out your own will is tempting, many issues surround a handwritten will that could cause more problems than solve.
Is a Handwritten Will Legal in Tennessee?
In Tennessee, three types of wills are legal:
A standard will that was created with the help of an estate attorney
A nuncupative will, completed while the person’s death is imminent
A holographic will, also known as a handwritten will
Although the courts will recognize handwritten wills, they must comply with T.C.A. § 32-1-105:
No witness to a holographic will is necessary, but the signature and all its material provisions must be in the handwriting of the testator and the testator’s handwriting must be proved by two (2) witnesses.
What the statute means is that a handwritten will is only found valid if the deceased had signed the document and two witnesses can prove that the handwriting is the testator. The will must be entirely written out – if it is typed out, for instance, it will not be valid under Tennessee law.
Holographic wills are beneficial since the testator writes the will and therefore does not have to pay any fees. It gives the testator greater control over who can receive his/her assets. But, while a handwritten will is legal, and if done correctly, can hold up in court, handwritten wills can cause many issues after the testator dies, such as:
Finding the will: It can be challenging to find the will in the first place. If it was a common will, the attorney will have either a duplicate of the will or know where the original is.
Difficulty with witnesses: Witnesses will need to verify the handwriting in court. So you will not only need trustworthy individuals, but they need to know what your writing looks like.
Finding materials: The witnesses will need to have the proper materials to prove the handwriting is the testator’s and not anyone else’s. Without the right evidence, the document will be found invalid.
Expenses: Although the testator is saving money by not hiring an attorney to create the will, the beneficiaries or the estate may face additional costs following his/her death. These expenses can be from someone contesting the will.
The will itself: There are a lot of complex legal issues involved in the creation of a will. If the testator is not familiar with these terms or topics, the will could be difficult to understand or miss critical legal aspects.
How Our Nashville Estate Lawyers Can Help
Martin Heller Potempa & Sheppard, PLLC understands the appeal of handwritten wills. However, we stress that you speak with an experienced estate planning attorney to create a will. Despite what you may think, there is much more to your estate than your assets or property. Our estate attorneys can help with not only preparing the will, but help with the creation of a trust; creating a conservatorship; protecting your wealth; and, if necessary, represent your interests in probate. At Martin Heller Potempa & Sheppard, PLLC, our estate planning lawyers will guide you through the process with the compassion needed. With years of experience in estate planning and administration, we know how to protect your assets best and prepare for the unknown.
If you’re ready to create your will, we’re here to help. Contact Martin Heller Potempa & Sheppard, PLLC now for more information.