People try a variety of ways to avoid using a lawyer to create their estate plan. One common shortcut is to try to use an online website that promises to charge only $___ (insert a ridiculously cheap amount of money here) to help you draft a will. Many people are drawn to the low price, but don't realize that all the website is doing is mail-merging their information into a template (and who knows where they got their template from) and sending it back over to you to sort out the rest.
Another "shortcut" that many consider is to handwrite their will. A handwritten will, often referred to as a "holographic will," can be valid in Minnesota. But the answer to this question is nuanced, as Minnesota has specific requirements that dictate what constitutes a valid will. While handwritten wills are accepted in some states under certain conditions, Minnesota law generally does not recognize them as valid unless they adhere to strict legal formalities.
Before you choose to use a handwritten will, it's important to understand the requirements to make it valid.
Understanding Minnesota's Requirements for a Valid Will
To understand whether a handwritten will is valid in Minnesota, you need to understand the general requirements for a will to be legally enforceable. Under Minnesota law, for a will to be valid, it must meet the following criteria:
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In Writing: The will must be in writing. It can be typed or printed, but the law does not require it to be professionally drafted.
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Signed: The testator (the person making the will) must sign the document. This signature indicates that the testator intends for the document to serve as their Will (often called a Last Will and Testament).
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Witnesses: Two witnesses must be present when the will is signed, and these witnesses must also sign the document. The witnesses should not be beneficiaries of the will, as their impartiality could be questioned if they stand to gain from the will's execution.
These basic criteria apply to all wills in Minnesota. As you can see, simply writing out your will by hand, even if it expresses your wishes clearly, is not enough to make it valid in Minnesota unless it meets these additional formalities, particularly the witness requirement.
Are Handwritten Wills Valid in Minnesota?
Handwritten wills are not automatically considered valid under Minnesota law. Minnesota does not explicitly recognize holographic wills in the way that some other states do. For example, in states that accept holographic wills, a handwritten document can be legally binding as long as the handwriting is verifiably that of the testator, and there is clear evidence that the document reflects their final wishes.
In Minnesota, however, the handwritten will must still meet the formal requirements mentioned earlier, particularly the requirement that two witnesses be present and that they sign the will. Even if the entire will is written by hand, without these witnesses, the will is unlikely to be considered valid. This is the main step in the process that people writing a will themselves don't follow correctly.
If you attempt to create a handwritten will without following the proper witnessing procedures, the probate court in Minnesota is likely to reject it. The intent behind this rule is to prevent fraud and ensure that the testator's true wishes are carried out. A properly witnessed will provides greater assurance that the document is legitimate and not the product of coercion or forgery.
Exceptions to the Rule
As lawyers, we seem to specialize in the "exception to the rule" in a variety of areas. While Minnesota does not typically accept holographic wills, there are exceptions in some rare circumstances. For example, if a handwritten will from another state is presented in Minnesota's probate court, it might be accepted if it complies with the laws of the state where it was written. This is known as "reciprocity," and it allows wills that are valid in one state to be valid in another potentially, provided that certain conditions are met. However, this is an exception rather than the rule, and the court will carefully scrutinize such wills before determining their validity.
Why Are Handwritten Wills Risky?
Even though some states allow handwritten wills, creating one is often risky:
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Lack of Witnesses: As mentioned earlier, Minnesota requires two witnesses for a will to be valid. A handwritten will without witnesses is likely to be challenged in probate court and could be deemed invalid.
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Ambiguity: Handwritten wills often lack the precision and clarity of wills that are drafted by professionals. Ambiguous language can lead to disputes among beneficiaries and complicate the probate process.
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Potential for Fraud: A handwritten will could be forged, altered, or contested on the grounds that the testator did not write it voluntarily. The formalities of a properly witnessed will serve as safeguards against these issues.
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Outdated Information: People often write holographic wills in moments of urgency, without updating them later. If the circumstances of the estate change, such as the acquisition of new property or changes in family structure, a handwritten will may not accurately reflect the testator's final wishes.
Creating a Valid Will in Minnesota
To avoid the risks of using a handwritten will (or even a will template you got for $39 online), here are some suggestions:
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Consult an Attorney: While it is possible to create a will on your own, consulting with an estate planning attorney can help ensure that your will complies with Minnesota law and that it accurately reflects your wishes. A lawyer can help you navigate complex issues, such as tax implications or specific bequests to charities or trusts.
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Use Proper Witnesses: Make sure that you have two witnesses who are present when you sign your will. Ideally, these witnesses should not be beneficiaries of the will, as this could create a conflict of interest. The witnesses should be able to testify, if necessary, that you signed the will voluntarily and with full mental capacity.
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Store Your Will Safely: Once your will is signed and witnessed, store it in a safe place, such as a fireproof safe or a secure location. This ensures that it can be easily found and executed upon your passing.
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Keep It Up to Date: Life circumstances change, and so should your will. Regularly reviewing and updating your will is essential to ensure that it continues to reflect your wishes. This is especially important after major life events such as marriage, divorce, the birth of children, or the acquisition of significant assets.
While Minnesota does not entirely rule out handwritten wills, they are not recommended due to the legal formalities that must be followed. In most cases, handwritten wills that lack witnesses are not considered valid in Minnesota, and relying on them can lead to legal complications and disputes among your family. To ensure that your wishes are carried out after your death, it is always best to create a will that meets all of Minnesota's legal requirements, preferably with the guidance of an attorney. By doing so, you can protect your assets and provide peace of mind for your loved ones.
Need Help With Your Minnesota Estate Plan?
You don't need to rely on a handwritten will for your estate plan. If you need help getting your will (and other documents) in place, let's schedule a Legal Strategy Session online or by calling my Edina, Minnesota office at (612) 294-6982 or my New York City office at (646) 847-3560. My office will be happy to find a convenient time for us to have a phone call to review the best options and next steps for you to work with an estate planning attorney.
