Question: Is naming a beneficiary in a phone text considered a legal standard as far as a Will is concerned?
Background: My brother is deceased, and he stated in a text that he wanted me to receive all his belongings and money. He also stated he did not want his sons to receive anything. He was divorced and estranged from his sons.
Please accept my condolences on the loss of your brother.
No, a text message sent by a now deceased person would not be a substitute for a valid Will. Wills generally must meet certain requirements, including a signature from the deceased person, a certain number of signatures from disinterested witnesses and a certain process surrounding the signing of the Will. In the past several years there have been some cases that indicate that courts in some states may be more willing to accept non-traditional written items as Wills. However, most of those cases have come from states that accept holographic Wills, which tend to have much less strict requirements. Here in Georgia, holographic Wills are not acceptable, and the tendency has been to interpret the requirements for a valid Will fairly narrowly and strictly.
If your brother lived in a state where holographic Wills are accepted and if you want to spend money and time trying to litigate the issue, then you might be able to at least get a court to hear your argument for why the text message should be accepted as his Will. I wouldn’t recommend doing so, though. Most likely it would be a waste of your time. Also, I don’t think that the population as a whole would be well served by allowing a simple text message to serve as a Will even though it might be a good result for some people in some cases.
If your brother really wanted to disinherit his children, he had ways to do so effectively. It does not sound like he actually took those steps. As he is now gone and we can’t ask him, we can’t really know whether he decided not to do that after all in spite of his statements in the text message, or whether he just failed to take the right steps to do so effectively. But for whatever reason, he seems not to have taken those steps, and a text message is highly unlikely to be respected as a valid Will.
Key Estate Planning Takeaway: Wills serve several important purposes – one of which is to legally ensure that the deceased person’s wishes are followed related to a distribution of assets. A Will stipulates who will receive assets and how those assets will pass. At this point, the safest legal way to ensure that assets are distributed according to your wishes is to take the time to have an official Will drafted and to name a trusted executor. While text messages are perfect for quick communications, they are not a legally acceptable substitute for a written Will.
This “Q&A with Loraine” blog series features answers from Morgan + DiSalvo Partner Loraine DiSalvo to questions posted on www.avvo.com. A key takeaway from each exchange highlights an important facet of estate planning.