Thinking about our own mortality is never comfortable, but it is important to plan what you want to happen when you die. And having a last will and testament is an important step.
“Wills are a great tool to make sure your property goes to the individuals that you want after you pass away,” says Joanna Jarzebowska, director of client intake for the SeniorLAW Center, a nonprofit legal services agency that serves Philadelphia area seniors. “In a will, you can choose exactly who you want to inherit your property.”
In Pennsylvania, anyone who is 18 years of age or older and is of sound mind — meaning that they have the capacity to understand what they own, and who they are leaving it to — can write a will. And while the process can be complicated, you need to do it right because if you die without a will (known as dying “intestate”), Pennsylvania law will determine who your heirs are.
So how do you write a will, and what should it contain? Here are some basics to consider:
In a word, no. Pennsylvania law does not require that an attorney draft your will. But because they are often complex documents with lots of elements to consider, having an attorney can help make sure your will is legally valid.
Premade, online forms aren’t typically the best option because how a court determines whether a will is valid (called the “probate process”) is different from state to state.
“We are often asked, ‘Well, can I just download the form and write what I want?’ ” says Dana Goldberg, legal director for the SeniorLaw Center. “We feel very strongly that talking to a lawyer and walking through your options is really, really important.”
An attorney will ask a variety of questions about what property you own, who you want it to go to (your “beneficiaries”), and who will be responsible for carrying out your wishes (the “executor” of the will). A lawyer can also make sure the will contains all the necessary elements to make it valid and include provisions that make it “self-proving,” which makes it more difficult to call into question.
That said, you can legally write your will yourself. Jarzebowska notes that Pennsylvania does recognize handwritten (or “holographic”) wills, which are often a good option for people who do not qualify for low-income legal aid but still cannot afford attorneys.
Under Pennsylvania law, all wills must be written (oral wills are not considered valid) and signed by the person who is making the will (called the “testator”).
Your will should include a number of things, including:
Naming beneficiaries can be complicated, especially if they are minors or have a disability for which they receive government benefits (because inheriting money can disrupt those benefits, Jarzebowska says). However, you generally can name any person, charity, or organization as a beneficiary. But one big limitation: You cannot completely disinherit your legally married spouse, even if you have been separated for decades, Jarzebowska says.
If your will is handwritten, it should be entirely in your own handwriting (meaning no typed portions). And while it is generally not required to have a handwritten will notarized or signed by witnesses, it is a good idea because it helps it be considered valid, Jarzebowska says. If you’re going to have witnesses sign your handwritten will — which both Jarzebowska and Goldberg strongly suggest — there should be two of them, and neither should be named as beneficiaries.
Typed wills, Jarzebowska says, should also be notarized and include two non-beneficiary witnesses. And if your will includes a self-proving affidavit — which is a document that helps prove the will’s validity and simplifies that probate process — that will need to be notarized and witnessed by two non-beneficiary witnesses as well.
There are also other factors to consider, such as naming a caretaker for minor children or pets if you have any, or including a “residue” clause (which covers assets not listed in your will). Make sure you take the time to consider exactly what you want.
Getting your will notarized and witnessed is more difficult during the pandemic — particularly for seniors, as they are a high-risk population, Goldberg says.
You can’t notarize or witness a will remotely (like over Zoom). They must be done in person, Goldberg says, so make sure to follow all COVID-19 precautions: Wear a mask, stay distanced, and do it outside, if possible.
Once your will is drafted and signed, you should make sure to take good care of the original document. Goldberg suggests keeping it in a fireproof box or safe, and giving your executor instructions on how to access the will after your death.
One thing you should never do: Do not keep the original will in a safe-deposit box in a bank. That can complicate things after your death. “The person who is going to have the authority to get into a safe-deposit box is the executor, but you can’t get the paperwork for the executor unless you have the original,” Goldberg says. “It should be outside of a safe-deposit box.”
After your death, your executor needs the original will, not a copy, Jarzebowska says. In Pennsylvania, the courts assume that if you cannot locate the original, it was destroyed, and probating a copy of the will can be difficult, Jarzebowska says. “It needs to be the original.”
You can change or update your will whenever you want, but there are some circumstances when you absolutely should consider an update. Those include if you:
If you do update your will, you can’t just change the original, such as by crossing out beneficiaries or making notes in the margin. Instead, you will have to draft an entirely new will, or add a “codicil” that formally modifies the document.
To make sure the new will can be considered valid, you could either destroy the old one or include language in the new document that makes it clear that any previous wills are no longer in effect. (When SeniorLAW Center drafts wills, they include clauses that invalidate previous wills, Goldberg says.)