Today, a will is considered the most common method of arranging one’s affairs in case of death. A will, or testament, is a unilateral legal act in which the testator distributes their property, producing effects after their death. Through a will, the testator designates one or more individuals as heirs or assigns specific rights and obligations to be transferred at the time of death.
Drafting a will allows the testator to freely dispose of their property in the event of death. A will can also include other declarations and instructions related to the testator’s death. For instance, it may acknowledge paternity, appoint an executor, or name someone to oversee the protection of the testator’s image or legacy, either solely or in collaboration with others.
A will is a revocable expression of intent, which holds precedence over statutory inheritance. If a testator writes a valid will covering all their assets, statutory inheritance will not apply. However, if the will covers only a portion of the property, that portion will be distributed according to the will, while the rest will be inherited by law. When property is not left to a single person, the will must specify each heir’s share. This can be done broadly, such as having two heirs receive half each, or by listing specific items for each heir. The testator may impose conditions and time limits within the will, such as requiring a child to excel in school to inherit, which would serve as a condition, or designating a specific age for inheritance, which would serve as a time limit.
To best fulfill the testator’s wishes and ensure the will is considered valid, the intention must be serious, clear, real, and understandable, and the will itself must be made in one of the legally recognized forms. Our legislation recognizes nine different forms of wills, some temporary or exceptional, effective only under certain conditions or within specific time frames (such as oral, military, and maritime wills).
The choice of form is, therefore, not simple. We are frequently asked by clients which type of will is appropriate, and our most common recommendation is the handwritten testament. Here are the reasons we make this recommendation:
Speed
Drafting a handwritten testament does not require scheduling and waiting for an appointment, as is the case in court or with a notary. You can draft a holographic will on your own or with an attorney’s assistance. No notarization is required.Privacy
You can create a handwritten testament without witnesses and sign it in your own handwriting. This is the only type of will that does not require the presence of others, providing security that the will is made without external influence. The contents of this will remain confidential until the testator’s death, which can be of particular importance.Simplicity
A handwritten testament can be written on plain paper. Ideally, it should reflect the testator’s usual manner of expression.Cost
This type of will does not require witnesses or additional costs for drafting. The form is simple and accessible, requiring only that you be at least 15 years old and possess a genuine and serious intention to draft your last will.
Handwritten Testament: With or Without a Lawyer?
Although a handwritten testament is convenient, there is a risk it may not be valid, clear, or that the testator may omit certain assets or conditions that could be important for the will’s execution. It is crucial to ensure the will is entrusted to someone reliable to avoid it being lost or hidden. Consulting an attorney during the drafting process can significantly reduce potential disputes regarding its validity and contents. An attorney, knowledgeable in inheritance law, can help ensure that your last wishes are carried out as intended.
Daša Komnenić,
Legal Intern at Todorović Law Office