Yes. In America, you can take almost any legal action on your own, even representing your self in court. Of course, the old saying is “he who represents himself has a fool for a client.” That may be true in some complicated legal matters, but there are plenty of simple legal matters where you can do-it-yourself.
A simple Will is a good example of something you can do without a lawyer. Don’t get this confused with a Trust or an overall estate plan, that takes a bit more understanding of Trust and Will law, tax law, property transfers, and practical experience in how to avoid disaster. We have plenty of cases in my law firm where a complex trust was poorly drafted using on-line software. You should avoid that.
Creating a Simple Will
But if all you want is a simple Will leaving your assets to your children, or named heirs, not a problem. You have a few different options available to you:
California Statutory Will
- California statutory Wills. Of course, you can always us an online Will creation service, but there really is no need for that because California provides a form Will right in the Probate Code. Here is link to the California statutory Will from the California State Bar’s website. The form is free, you can just print it out and fill in the boxes.
Witness Signatures When Creating a Will
WARNING: if you are going to use the California statutory Will (or any Will that is typed instead of hand written), then you MUST sign the Will in the presence of TWO witnesses, and then the two witnesses must also sign. This is very important because a typed (or computer generated) Will in California cannot be admitted to probate unless it is witnessed by two witnesses. There are a few exceptions, but it puts the burden on the heirs to try to prove the Will is valid. Don’t make this mistake—use two witnesses.
Also, California Wills are NEVER notarized. Notarizing a Will mean nothing in terms of validating it. You must have two witnesses sign the Will, and that’s all you need. A notarized Will does not help in any way, so save your money and skip the notary. I cannot tell you how frustrating it is to have a client bring in a loved one’s Will and seeing only one signature (NOT valid), or seeing only a notarization stamp (NOT valid). If only they had obtained two witness signatures, the Will would have been valid!
Handwritten (Holographic) WIlls
- Handwritten (Holographic) Wills. You also have the option of handwriting your own Will. When a Will is written in the handwriting of a decedent, it is a valid Will even if there are NO witnesses. This is called a holographic Will and it can be admitted to probate quite easily; provided that, people can read your handwriting (seriously, try to write clearly). Of course, you could still have two witnesses sign a holographic Will even though it is not necessary (and why not—be on the safe side).
California law presumes that holographic Wills are valid because they are written by the decedent in the decedent’s own handwriting. Therefore, no witnesses are required. And you can write a holographic Will on anything you want, pad of paper, napkin, envelope, a receipt from Denny’s. Almost anything can be used to write down your last Will. Of course, you really should make it as clear as possible. So get out a pad of paper and at the top write “Will”. And then say that the follow is your last Will. And then write down what you want to happen with your estate.
The only problem with holographic Wills is they can be difficult to interpret at times. For example, someone might say “my house goes to my son and my wife can live there.” That may make sense to the person writing the holographic Will, but legally it causes problems. What type of interest are you giving to your son? Does he own the house outright? Does the wife have a life estate? Must the wife pay rent to the son? How long can she live there? What happens if she moves out? There are a lot of practical legal problems with this simple sentence.
Can I Create a Will Without A Lawyer?
And that brings us back to the initial question, can I create a Will without a lawyer. You certainly can, but if you have any complexities in your plan, then you may want some help from a lawyer. Lawyers who are experienced in estate planning, have seen a lot of plans and a lot of disasters. They can help you navigate the pitfalls that you may not even know are there. If, however, you just want to create a Will were your children receive your assets equally, and they receive them outright after your death, then these two Will creation options will probably work for you.