Is it a good idea to make handwritten changes on your will or living trust?
Probably not, and I’m not saying that because I’m an attorney. As a practical matter, no because what you may think seems clear or makes sense may actually cause confusion or even litigation after you are gone.
In light of these tough economic times, everyone is looking to cut costs whenever possible, but your estate plan is not something that you should take lightly. Your intent needs to be clear from the face of the document and piecemeal / disjointed notes are often ambiguous and subject to different interpretations.
After you pass away, how are the people left administering your estate going to interpret those handwritten notes? Maybe you were just making notes on a copy in contemplation of making changes to your estate plan; however those changes may be treated as an amendment. Much more importantly, if you want the changes to take affect after you die they might not be upheld; and the rules differ for will and trusts.
When we make a mistake writing a check or something similar people often initial and date the change / correction but that may not be enough to make changes to your testamentary instrument, whether it is a will or a trust.
There are formality requirements that must be followed in order for a will or trust to be considered valid and upheld in court. Very generally, you have to be at least 18 years old and of “sound mind.” For a will, the document must be signed by the testator and signed by two witnesses both present at the same time. Trust documents are notarized. The reason we have these requirements is to prevent forgery / fraud and from duress, menace, undue influence.
With trusts all beneficiaries are entitled to a copy of the trust, so major changes that are handwritten are likely to be challenged, and there are a number of reasons why: hurt feelings; if the beneficiary previously stood to get a lot of money they are probably more likely to challenge a change of this kind since the chance that they prevail may be worth the gamble of attorneys fees; or simply because the document with the handwritten notes is ambiguous.
So, if the reason you are thinking of making handwritten changes is to save the cost of attorneys fees—it’s probably a better idea to spend a few hundred dollars now to do the job right since litigation costs could easily cost your estate thousands of dollars. Additionally, the emotional cost to your loved ones is something most people want to avoid, and can be prevented with proper execution.
Our office can answer any questions you may have regarding your estate plan. We are happy to assist you in ensuring you have the best plan in place to suit your needs. Please feel free to contact us at (650) 463-1550 or visit our website www.falkandcornell.com. Click on “contact us;ask a question”.
