Introduction to Free Wills
The population of Texas is about 30 million. Maybe 10 million of these folks don't need a will because (1) they don't have property or (2) their property will go to the proper survivors on death through a “will substitute.” The most common will substitutes would be (1) a bank account that passes on death to someone named in the account to inherit and (2) a life insurance policy that names a beneficiary on death. This leaves maybe 20 million Texans who ought to have a will because it would benefit their survivors. Well, you can be sure that the number of Texans who have a will is far fewer than that. Spending money on a will is at the absolute bottom of every shopping list.
But Texans have a way to make a will for free! Just write it down on a piece of paper in your own handwriting and sign it, and you've got a legal will. The technical term for this kind of document is a “holographic” or handwritten will. The handwritten will is legal in Texas even without witnesses or a notary involved. (Even a short handwritten will would be much harder to forge than a mere signature on a typewritten will.) Lawyers also call the handwritten will an “emergency will” to be used by someone who suddenly fears immediate death. But Texas law doesn't require an emergency for the handwritten will to be valid.
While the only requirement is that you write the will in your handwriting and sign it, there are some practical tips to make the will better. The will should appoint an executor to serve without bond. The executor will be the one to use your will to make sure your property goes to your beneficiaries. Unless you want to modify an earlier will, you should write in your will that you give all your property to your beneficiaries. This inclusion will, for practical purposes, revoke any earlier will.
Now lets assume there are 15 million Texans who could benefit from having a will, but don't have one. Could some of these millions benefit from using a handwritten will? Texans today own a bewildering variety of assets. They are also involved in a vast variety of situations with their families and other beneficiaries such as dear friends and charities. The wealthier ones have tax issues to worry about. And it's tricky to write a will that everyone else will understand the same way you do. Handwritten wills are not going to be good enough for many of our 15 million Texans who need a will.
But there are a number of situations where the handwritten will might be good enough or, at least, better than nothing. Here are some I have encountered:
Adult child with no family of his own. Most single adult children don't have a will. But some adult children die young (which is, of course, the worst thing that can happen to a parent). Every adult child with no family of his own should at least make a free handwritten will leaving his property to his parents or, if appropriate, to brothers and sisters, special friends, or charities.
Foster child. I recently worked with a young lady who had been sheltered for many years by a benevolent couple as volunteer foster parents. (You might be surprised that this is fairly common.) The young lady was starting to work and she wanted her estate to go, in the event of her death, to the foster family. Her hand-written will ought to work fine until she starts her own family.
Newly-weds without children. Most married couples with no kids will use a lot of convenient will substitutes. It would also be good to have a free will as a backstop and to appoint an executor. Once kids start coming along, the couple probably will probably upgrade to wills with trusts for orphaned children, and this is too complicated to write by hand. Older couples without children often need to have a lawyer will that will be fair to the survivors of both spouses. With wills that are too simple, the heirs of the second spouse to die will inherit everything. This can be very painful for the relatives of the first spouse to die, who often have contributed a lot to the care of the old couple.
Single older estate owner with many adult descendants. There is a short formula (“lineal descendants per stirpes”) for leaving an estate to adult children and grandchildren the way most people want it done. Many older people can afford to go to the lawyer, but it's just too much trouble. A handwritten will for lineal descendants per stirpes could work well if there are no minor children in the picture.
Single older estate owner with relatives other than descendants. This will just leaves property according to the laws of Texas in an estate when there is no will (i.e., an intestacy). It gets the job done and is much faster and cheaper than going to court to “prove up” to the judge who the intestate heirs are.
Codicil to a typed “lawyer will.” Minor changes to a lawyer will can be made with a handwritten amendment, which lawyers call a “codicil.”
Emergencies or last-minute realizations. Example: a husband had separate as well as community property with his spouse, and he was terminally ill. Attached is a handwritten will I dictated to X on the phone. He didn't want his second wife (also my client) to have a fight with other members of his family (step-children to the second wife) over separate property he owned before he married the second wife. The judge said, “I usually hate these handwritten wills because they can cause a lot of trouble, but this one seems to work like a charm.”
If you think a free will might help, just try to keep it as simple as possible. The examples that follow could help you successfully write a good free will!