Can I Write My Own Will?

The DIY dilemma is an age-old question: Should you do it yourself or use an expert? Now, with social distancing rules in place, the decision has more urgency than ever, especially if we have to wait to get our hair cut or our home appliances repaired. That same question also applies to estate planning.

During the pandemic, all of us have been forced to analyze our health and our future: Am I sick right now? What would happen if I did get sick? How would my family cope if something happened to me? These might not be pleasant thoughts, but they’re natural, and we have a lot more time to think about them.

If creating a will was previously on your list of “things-I-should-do-but-never-quite-get-around-to,” then you might have the time now to get it done. But can you do it yourself? Or should you consult an expert?

What is a will?

You may have already tried to write your own will. For example, you might have left behind a letter before a trip about who should care for your kids if disaster strikes.

You see this kind of thing happen on TV, too. In Season 6, Episode 5 of Parks and Recreation (“Gin it Up”), Ron Swanson proudly shows off the will he has written on a small piece paper that he stores in his wallet. It states: “Upon my death, all of my belongings shall transfer to the man or animal who has killed me.” It is signed “Ron Swanson." Fortunately, by the end of the episode, Ron does use an attorney to write a valid will. You can watch a funny clip from this episode online: Ron Writes a Will.

(Note: I’m not the only legal mind interested in this episode. Read Matthew Landis’ blog “Is Ron Swanson’s Will Valid in Pennsylvania?” or Collier Law Firm’s “Analysis of Ron Swanson's Last Will and Testament.”)

Ron’s first will is called a holographic will. It is written in the testator’s own handwriting and signed by him. In the state of Iowa, a holographic will, like the one described above, is not enforceable. However, Iowa does recognize a handwritten will as enforceable if it meets both:

• It is signed by the testator (the person making the will).

• It is signed in front of two competent witnesses.

Can I write my own will in Iowa?

So can you write your own will? The answer is a qualified “yes”—followed by a big BUT.

Any will you write has to meet Iowa’s legal requirements to be valid. (For some light reading on the topic, visit Iowa Code Section 633 - Probate, Part 2 - Execution and Revocation.)

If you think you might be up to the challenge of writing your own will, I provide some advice below. But I also invite you to participate in my Will in a Day® program. For a reasonable flat fee, you can have both your will and powers of attorney documents prepared and signed without leaving your couch. Will in a Day® is now completely virtual—from the drafting and discussion to the remote witnessing and notarization.

Requirements for a valid will

First, a legal disclosure. My attorney made me include this (wink, wink). This is not legal advice. Talk to an attorney about your specific situation. This is legal information only, and the law can change over time.

In general, Iowa requires the following for a valid will:

• The testator must declare it is their own will and ask two people to act as witnesses.

• The will must be in writing, signed by the testator.

• The will must be signed In the presence* of two competent witnesses.

• The witnesses must also sign the will.

Note: The full law on a valid will in Iowa is included in 633.279.

Additional notes: A person who may inherit under the will or under the laws of intestacy can witness the will BUT that person forfeits a certain part of the inheritance. (See Iowa Code 633.281).

Potential complications: Your intent

If you satisfy the legal signing requirements in Iowa for a valid will, there may still be complications. The provisions in the will may not be written as you intended. For example, if you name a married couple to be the appointed guardians of your minor children, what happens if they are not married at the time of appointment? What happens if the executor you named is not willing to be the executor?

The Last Will and Testament forms you can buy online are prepared by attorneys. Attorneys themselves use forms when preparing a will. However, an attorney provides what a legal form cannot: Anticipating what can go wrong and drafting the will to avoid an unnecessary event. The attorney can draft specifically for your situation and ask questions to spot potential issues.

The choice to use a qualified attorney to prepare your will comes with peace of mind: You know your will states what you intended it to.

Keep all this in mind when making your final decision about whether to DIY or consult an attorney. More than 50% of my practice is preparing wills, and I would love to help you with your last will and testament. Contact me to get started.

*Under Iowa’s April 27, 2021 Proclamation of Disaster Emergency , the in-person (“in the presence”) requirement of a witness to a testator signing a will is waived. The witnesses, however, must contemporaneously view the testator signing the will. This proclamation will expire, and, at the time you read this blog, it may not be an option.