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Movies, television, and books like to present wills in dramatic ways–handwritten notes, videos, deathbed utterances–but what makes a will valid? The law varies depending on what state you live in, but there are some basic rules. 

The legal requirements for a will are simple. For your will to be valid, you must know what property you have and what it means to leave it to someone, then sign and date the document and have it witnessed according to the laws of your state. Most states require two witnesses to watch you sign the will and then sign as witnesses. Usually one of the witnesses can be the lawyer who drafted the will. Most states do not allow beneficiaries under the will to be witnesses. 

Some states allow you to make a handwritten will, called a “holographic” will. This will does not need to be witnessed, but it is much more likely to be challenged after you die. Some states require that the entire will be in your handwriting; others call for just the important portions to be in your handwriting. The writing must indicate your intent to make a will and clearly describe the property being given away. Some states require the will to be dated and signed. 

Very few states allow an “oral” will (called a “nuncupative” will). The states that allow this type of will have very specific requirements for when it is valid. For example, Indiana only accepts an oral will if it is made by someone in imminent peril of death who then dies as a result of the peril. States may require two witnesses, and for the will to be reduced to writing soon after the declaration. There also may be a limit to the amount of property someone can dispose of with an oral will. 

Video wills are not recognized as a form of will in any state. States may recognize a video will as a valid oral will if it meets all the requirements, but a video will, by itself, is not a valid will. However, using video to record a will signing can be a good method to prevent a will contest. A video recording of the will signing allows your family members and the court to see that you are freely signing the will and makes it more difficult to argue that you did not have the requisite mental capacity to agree to the will.

The best way to make sure your will is considered valid is to consult with Attorney Henderson. To contact our firm, call 301-220-4463, M-F, 9 am to 5:30 pm EST.

Tags: estate planning, estate planning attorney, estate planning lawyer, will, Maryland estate planning attorney, written will, diy will, estate planning law.

*This article is provided as legal information, not legal advice and our law firm makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in in this article. The distribution or acceptance of this article does not constitute an attorney-client relationship with our law firm.

Written 6/21/2019

A power of attorney is one of the most important estate planning documents you can create, but it is also one that can be misused.  While it isn’t possible to entirely prevent the possibility of abuse, there are steps you can take in drafting the document to greatly reduce the chances.    

A power of attorney allows a person you appoint — your “attorney-in-fact” or “agent” — to act in place of you – the “principal” — for financial purposes when and if you ever become incapacitated. In that case, the person you choose will be able to step in and take care of your financial affairs. Unfortunately, if the agent chooses to exploit the principal, a power of attorney in the wrong hands or with too much power can be very bad news. The following are some ways to draft a power of attorney to prevent someone from taking advantage of you.

  • Trustworthy agent. The most important thing you can do is appoint a trustworthy agent. Think carefully about whom you want acting on your behalf. You need to appoint someone you trust to have your best interests in mind. If you do not have any friends or relatives who are appropriate, you could hire a professional fiduciary. A professional fiduciary can be a bank with trust powers, a certified public accountant, or a trust company. Another option is to have multiple agents, which allows more than one person to share the responsibility and permits them to divvy up tasks. Requiring the co-agents to act together provides checks and balances, but it could become very cumbersome if all of your agents have to sign every check or other documents. 
  • Second signature. If you don’t want to have co-agents, but you want a check on the agent, one option is to require two signatures for large transactions. The power of attorney document can set rules on what transactions would require an additional person to sign off on them. 
  • Backup agent. In addition, to have a trustworthy agent, it is a good idea to have a backup agent in case the first agent becomes incapacitated or no longer wants to serve as an agent. If you do name alternates, make sure the document is very clear about when the alternate takes over and what evidence he or she will need to present when using the power of attorney. 
  • Third-party accounting. One way to prevent an agent under a power of attorney from exploiting the principal is to require the agent to provide an accounting to a third party. The third-party could be a family member or friend. It doesn’t have to be a formal accounting; it can be a summary of the financial transactions. The power of attorney document can provide the details on what information needs to be provided to whom and how often. 
  • Limit powers. The power of attorney can provide detailed instructions on the various powers the attorney-in-fact may carry out. You can make it as broad or as limited as you want. For example, you can allow your agent to pay bills, but not to change your will. One of the most important powers in the power of attorney document is the power to gift. One way to prevent abuse is to strictly define when gifting is allowed and how much the agent can give. 
  • Review the choice. Every few years, you should review your choices in case something has changed. Don’t be afraid to revoke the power of attorney if you are no longer happy with your choice of an agent.

Because of these drafting choices, it is a good idea to have an attorney draft the document for you.  Your attorney can help you decide how to best protect yourself or a loved one.  

Tags: estate planning, estate planning attorney, power of attorney, estate planning lawyer, Maryland estate planning attorney, estate planning law, agent, principal.

*This article is provided as legal information, not legal advice and our law firm makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in this article. The distribution or acceptance of this article does not constitute an attorney-client relationship with our law firm.