David Horton, ‘Do-It-Yourself Wills’

ABSTRACT
Although most testators hire lawyers, others draft their own wills. Some try to comply with the Wills Act, which requires testamentary instruments to be signed by the testator and by two witnesses. Some create holographic wills, which are valid in about half of American states, and must be in the testator’s handwriting rather than attested. Some purchase fill-in-the-blank forms. And some have started using online will-making software sold by companies like Nolo Press, LegalZoom, and Rocket Lawyer.

These do-it-yourself (DIY) testamentary instruments are controversial. Proponents argue that they empower people who are too poor or too sick to consult an attorney, but critics assail them as a fertile source of litigation. Nevertheless, there is no hard data about how homemade wills compare to their professionally-drafted counterparts.

This contribution to the American College of Trusts and Estates Counsel and UC Davis Law Review Symposium improves our understanding of these issues by analyzing 1,133 recently-probated estates from Alameda and San Francisco Counties, California. The Article reaches three main conclusions. First, it is unclear whether people who create their own wills are less wealthy than those who hire lawyers. Second, there is some evidence that DIY devices are particularly useful for testators who fall gravely ill. Third, even controlling for the impact of other variables through a regression analysis, holographs in Alameda County and self-made and attested wills in San Francisco County are correlated with a statistically significant increase in the odds of litigation. Accordingly, the Article provides qualified support to both sides in this debate.

Horton, David, Do-It-Yourself Wills (October 27, 2019). UC Davis Law Review, volume 53, forthcoming.

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