Writing a formal will, even if you don’t hire a lawyer to do it for you, may seem like a lot of trouble and expense. Wouldn’t it be easier just to sit down, turn on the video camera, and record yourself expressing your wishes about who you want to inherit your property or serve as guardian for your children?
It might be easier, but it won’t create a valid will. (And really, do you want your last wishes on YouTube?) To be valid, a will must be on paper and signed. In most states, it must also be dated and signed by two witnesses, who watch you sign it and could later testify, if necessary, that you appeared to be of sound mind and acting of your own free will. (A Tennessee court did accept a will with an electronic signature, but the will itself was still printed out.)
Still, video can be a useful tool when you’re making a will, especially if you are concerned that someone might try to challenge your will after your death. A video can provide useful evidence that you knew what you were doing when you signed the will and weren’t being manipulated.
Learn more about how to make a valid will.
Recording the will-signing ceremony, or reading the will aloud on camera, can be useful for several reasons.
It can head off claims that you weren’t of sound mind, or were being unduly influenced, when you signed your will. If you think the terms of your will are going to severely disappoint a close relative—so much so that the relative might actually hire a lawyer and contest your will in probate court—you should take steps to avoid that unhappy situation now. Making a video of you and the witnesses signing your will can be one useful technique. If the video makes it clear that you are rational, know the contents of your will, and are using the will to express your own wishes (not someone else’s), then it will be a great help in discouraging someone from suing later—or defeating a claim if someone does contest your will.
Someone challenging a will must produce persuasive evidence that you weren’t aware of who your closest family members were, didn’t know what you owned, or were being unduly influenced by someone who hoped to profit. A recording of you explaining your decisions, or simply acting freely and independently, can help refute such charges.
It can show that you executed the will properly. Your will won’t be valid unless you sign it following a set of formal requirements set out by your state’s law. There must be two (or more) adult witnesses, you must tell them that the document is your final will, and then they must sign it. (Just two states, Colorado and North Dakota, allow wills to be notarized instead of witnessed.) Many states require that you and the witnesses all be in one room when you sign the document. A video could show the witnesses watching you sign and then signing the will themselves.
You can make your will online, quickly and easily, using Nolo's Online Will.
Hurt feelings and arguments after a death are often the result of a surprise in a will or trust. For example, there can be friction if children expect to receive equal shares of their parent’s estate but don’t, or if a more distant relative gets a large share at the expense of a child.
You don’t have to explain your choices—your property is yours to do with as you please, as long as you don’t completely disinherit your spouse—but you may want to, and video can be an easy and effective method. For example, if you leave a bigger share of your estate to one of your children because you’ve already given the others money to help buy their own houses, or because you want one child to serve as executor, you might want to say so. Your kids won’t be left to wonder about your actions, and it may prevent some squabbling.
A video could also help avoid conflict by conveying your wishes about how you’d like your family to divvy up items of sentimental value. The wishes you express in videos like these are not legally enforceable. Of course, if your relatives all agree to follow your wishes, and debts and taxes are paid, then they can use a recorded statement as a sort of will. But it wouldn’t be accepted by a probate court or by a bank or other institution that controls assets in your name.
If you have a well-grounded fear that someone might contest your will, consult an estate planning attorney. You may want to take steps during your life to head off what is sure to be an expensive and divisive fight. An experienced lawyer may have some good suggestions—for example, structuring your estate plan so that it isn’t worthwhile for a disgruntled relative to sue, or even meeting with family members now to let them know about your estate plan.