My wife and I are contemplating the final step into adulthood: drawing up the last will and testament. However, having never really thought about it before, we don’t really know where to turn. We have two main questions:
are do-it-yourself wills really valid (i.e. will they stand up to challenge), or is it better to have one drawn up by a lawyer? From what little I have read, some people (lawyers probably!) strongly recommend the latter.
I am American, my wife is Indian, and we live in Switzerland. Is there such a thing as an ‘international’ will that applies to all countries? What happens if we have the wills drawn up in Switzerland, but then we move to another country at a later date?
Advice (unofficial and non-contractual of course!) appreciated.
IAAL, but not yours and not licensed in your jurisdiction. Nor do I know many of the laws that would make my response relevant. What follows is, of course, not legal advice, as will become plain.
Do-it-yourself wills sometimes are valid. Some American jurisdictions permit holographic, or hand-written, wills. Some do not. Some permit the pre-printed forms. Some do not. Some do not permit the pre-printed forms, but do permit holographic wills, so if you handwrite the blanks in the pre-printed form, and your will makes sense solely with the handwritten parts, the court will enforce it.
Yes, many lawyers will recommend that you engage a lawyer to draft your will. However, I will not recommend that to you. Instead, I recommend that you spend some time researching the laws of the relevant jurisdiction (more on that in a moment); you should also become familiar with tax laws, to see if it makes sense for you to set up ABC trusts/ a revocable trust and a pour-over will, or if your tax situation is such that it doesn’t matter. Then, you don’t need a lawyer. (Incidentally, to figure out all that and draft appropriate wills/trust documents, a competent lawyer with experience in the area should cost about US $1,000 or less, so you may want to do the cost-benefit analysis to see if it is worth your time to do the research.)
I’m intrigued by your comment that you want the will to stand up to challenge. Do you anticipate a challenge to your will? Or did you mean by that simply that you wanted a court to enforce your will? Because you can draft the will differently if there is someone you think is going to challenge the will and try to take more than their fair share of your stuff.
Yeah, this is where I’m going to punt. It seems from the first sentence you’re assuming that the will’s validity depends on your citizenship at death; I think that the will’s validity instead depends on your residency and what court will enforce the will. Unfortunately, to figure out the relevant jurisdiction will take more time, and determining how to draft a will that meets the requirements of India, Switzerland and whatever US state you’re thinking of will take some time. I suspect, but do not know, that if you draft a will that meets generally the baseline of accepted wills in the US (written out, signed, witnessed by two or three disinterested witnesses, etc.), that otherwise fulfills the requirements of your current home (Switzerland), you maybe could be okay. But I am making stuff up here, so take it with a grain of salt.
Bottom line, you’ve got a lot of research ahead of you. Find the local law school, and use their law library for free. Ask the librarian for the section with treatises on wills and estates, and begin reading those. The treatises will cite case and statutory law; the librarians again can point you to those. I suspect it will take some time for you to do that research to the point where you feel comfortable drafting your own will (given the jurisidictional intricacies), so you may also want to ask around to find a good lawyer and see how much he/she would charge you. You may be surprised at how inexpensive it is.
Thanks Campion. I think it is worth asking legal questions on SDMB just to see the cool disclaimer you get!
No, I am not expecting a challenge, I just want to make sure that if I go through the trouble of making a will, that it actually works.
I am an the lazy end of the spectrum when it comes to things out of my comfort zone, so I tend to prefer to use experts when possible. I would be okay with $1000 in lawyer’s fees, but in Switzerland, things tend to cost a lot more!
Me, too. I know I could spend all next weekend fixing my leaky toilet, but I’d rather hire a plumber for $100 to come in and fix it, and have the rest of my weekend free. So I’m with you on that.
I have no idea where in Switzerland you are, but googling “switzerland bar association” brought up the Zurich Bar Association, which offers free legal advice at various locations by appointment. I don’t know if that helps, but theoretically at least these guys would know Swiss law. Good luck!
I’m not necessarily a fan of automatic referrals to lawyers.
IAAL, but not yours, and not licensed in any of the jurisdictions that we are discussing. This is neither legal advice nor a pipe. Are you calling me on the cellular phone? I don’t know you. Who is this? Don’t come here, I’m hanging up the phone! Prank caller, prank caller!
I agree with all that **Campion **has said.
I predict that in the end you will decide that you need a lawyer for this project. You are talking about some pretty complex estate planning decisions here. First, as **Campion **noted, residency (more particularly domicile) is the key to the applicable law, and usually the relevant court. There is a huge exception to this rule though: the disposition of any property is usually governed by the law of the jurisdiction in which it is located (courts call this its situs). Here is a taste of they analysis you will need to conduct if you decide to try to figure this out for yourself. http://www.willamette.edu/wucl/wlo/conflicts/03survey/03Survey.pdf (the part about Wills begins on page 42).
I think you will ultimately conclude that you must reevaluate your will each time you move. Whenver you move, you may subject yourself to variations in tax law, will law, domicile law, laws about which laws apply to any dispute that arises, and the rules about how a will should be probated. Thinking through all of this and finding the resources to do a proper job will be complicated.
