Preparing Your Own Will
Authored By: Alaska Legal Services - Anchorage
Introduction to Wills: Wills - FAQ
Wills - FAQ
Authored By: Alaska Legal Services - Anchorage
Frequently Asked Questions
What Is a Testamentary Will? +
A testamentary Will (commonly referred to simply as a Will) is a written legal document that specifies who you wish to receive your property after your death. It does not transfer property during your lifetime and is only effective after your death. Other documents, such as a Power of Attorney or a Living Will, operate during your lifetime. Please refer to Section VIII of this presentation to learn more about these other planning documents that can be useful while you are alive.
Why Do You Need a Will? +
Promises or wishes regarding your property that you have expressed verbally during your lifetime have no legal effect after you have died. In order for your wishes to be carried out, they must be written down in a Will. By naming a “personal representative” (also called an executor), you can be sure that there will be someone to handle your affairs.
If you die without a Will, any special gift you wanted to make to family members, friends, or charities will not be honored. When there is no Will, the court will divide your estate property between your heirs according to the laws of intestacy, which typically means that your property will be distributed to your spouse and children. For a more detailed explanation of these intestacy rules, please review Section III of this presentation.
In addition to specifying how your property will be distributed, your Will can nominate a person to serve as the personal representative of your estate or the guardian for your children should you die before they reach age 18 and the other parent is unable or unwilling to care for them. Your Will is also the appropriate place to direct how you wish your final remains to be handled (i.e. cremation or burial) and whether you wish any special religious or traditional services.
Who Can Make a Will? +
In Alaska, anyone who is 18 years or older and of “sound mind” may make a valid Will.
Being of “sound mind” for the purposes of making a Will is not too tough of a standard. Moments of forgetfulness or confusion do not prohibit someone from making a Will. The law has developed a common sense approach. To be of sound mind to make a Will, you must:
- know that you are making a Will and what a Will is;
- understand the relationship between yourself and the persons who would normally be provided for in the Will such as your spouse or children;
- understand what property you own; and
- be able to decide how to distribute your property.
What Are The Legal Requirements of a Will? +
There are five basic rules that you need to comply with in order for your Will to be legally sufficient. Your Will must be:
- In writing (typewritten, computer-printed, or handwritten);
- Signed by you voluntarily or, if you physically cannot sign, someone else may sign your name so long as he or she signs in your conscious presence and by your direction;
- Signed when you are of sound mind;
- Signed when you are at least 18 years of age;
- Signed by at least two witnesses (unless it is a handwritten Will – see below).
You may be surprised to learn that it is not a legal requirement to have your Will notarized. However, we recommend that you use a notary whenever possible because it can simplify the court proceedings after you die. See the Signatures and Witnessing Section of this classroom for a more detailed discussion of the signing, witnessing, and notarizing requirements.
Are Handwritten Wills Legal in Alaska? +
In Alaska, a handwritten Will, also called a holographic Will, can be valid and enforceable. The same rules apply to handwritten Wills as apply to typed Wills, except with respect to the witness requirement. In other words, all of the information in this classroom applies equally to both typed and handwritten Wills. The only difference between handwritten and typed Wills is that if your Will is handwritten, it does not have to be signed by witnesses in order to be valid. Anybody who is at least 18 years old and of sound mind may make a handwritten Will. However, there are a few things to keep in mind:
- The entire Will must be in your own handwriting;
- Start with your name, age, residence (city, town or village), and a statement that you are of sound mind and under no undue influence or threats;
- Use clear, simple sentences;
- Write down what you want done with your property after your death;
- Name a personal representative and indicate whether he or she has to post bond;
- Sign and date the paper at the end of your Will;
- If you make a mistake do not cross anything out or squeeze words in. Instead, start over and write it again correctly from beginning to end;
If you want to change your Will, write a whole new Will the same way and destroy the old one.
Once you have written your Will, it is a good idea to have an attorney read it to make sure it will accomplish what you want it to do
What Should I Do With My Will Once It Is Properly Signed? +
You may make as many copies of your Will as you want, but the original Will is what counts. The version with the original signatures should be kept in a safe, fireproof place where it can be easily found.
For a fee (currently $50), you can deposit your Will with the Alaska Court System. This fee can be waived if you qualify as a low-income individual. If you deposit your Will at the courthouse, the fee is good for your lifetime and if you change your Will, you may deposit the new Will at no additional cost. The court system has an agreement you must sign to deposit your Will and you will receive a receipt. The Will shall be kept confidential during your lifetime. Even a handwritten Will can be deposited with the court system.
If you are an Alaska Native, you might also check with your Alaska Native Regional Corporation to see if it offers this service.
Does My Will Expire? +
No. Your Will remains in effect until you revoke, change, or destroy it.
Can I Change My Will? +
Yes, you can change your Will at any time that you think it is appropriate to do so. In fact, it is a good idea to change your Will when your family or circumstances change or if the person you named as personal representative is no longer available to serve. If you get divorced, or have your marriage dissolved or annulled, your former spouse is automatically left out of any Will that you wrote before the marriage ended. If you want to leave anything to a former spouse, you must write a new Will after the divorce, dissolution, or annulment is final.
Under no circumstances should you make “notes” on your current Will in an effort to clarify what you mean, or to add “a little something.” Such notes could be construed by the court to mean that you revoked the Will and that all provisions are invalid.
There are two ways to properly change your Will:
- add a codicil (which is an amendment to the existing Will), or
- make a new Will. If your Will is very lengthy and you only want to change a part or add a new provision, you may make a codicil. A codicil looks like a Will and is used to change small parts of your Will. The codicil must be signed and witnessed in the same way as your original Will. Because of the technical requirements in this area of law, it is easy to make a mistake when making a codicil. An attorney should be consulted. Generally, we recommend that if you want to change your Will, it is easier and wiser to simply revoke your old Will and make a new one. This avoids confusion.
How Do I Revoke My Will? +
You can revoke your Will by destroying the original document or by making a new Will. Generally, when you make a new Will, your previous Will is no longer valid. However, if you have mentioned a specific item in your first Will and fail to mention it in the next one, the original gift still might be allowed. Therefore, it is strongly advised that you not only expressly revoke any prior Wills or codicils when drafting your new Will, but also destroy any prior Wills. Also, remember that you could accidently revoke your Will if you make notes on it. NEVER make notes on your Will!
What Happens If I Revoke My Will And Do Not Make a New One? +
If you revoke your Will and do not make a new Will before you die, your estate will be handled according to the laws of intestacy. For a detailed discussion of the laws of intestacy, see the section “If You Die Without a Will” in this classroom.