Serving your country comes with unique challenges, so estate planning can often look different for military personnel. Because of deployment, the potential for combat, frequent moves, etc., military personnel typically receive relaxed legal requirements under certain state laws and also have unique considerations different from the general public. Relaxed laws granted by the Uniformed Services Wills Act and Servicemembers Civil Relief Act (SCRA), allow military personnel to devise their assets more easily when navigating the challenging world of military life. So, let’s explore what a ‘soldier’s and sailor’s will’ is, the unique needs of military members, how to get a will as military personnel, and much more.
What is a soldier’s and sailor’s will?
A “soldier’s and sailor’s will” is simply another name for a military will. A military will is a will created by military personnel. Due to combat and deployment scenarios, military wills may receive relaxed formalities under some states’ laws. For example, when a soldier is deployed and wants to devise their assets, they are less likely to be able to abide by state laws for creating a will (putting it in writing, having 2 witnesses, etc.). So, soldiers may scribble down what they want to happen on a piece of paper or verbally tell a friend. Also, the rules are a bit more relaxed when it comes to the mental capacity of the testator: Think about it, a service member is likely experiencing high levels of stress, trauma, or fatigue from being in a combat zone. They may still be able to execute a valid military will, even if they are not in the best mental or emotional state, as long as they can express their intent. While normally, these scenarios wouldn’t hold up in certain jurisdictions, since they are military wills, they may be valid.
Military will vs. a traditional will
So, what is the difference between a military will and a traditional will? A military will is written by a soldier, sailor, or other military personnel and may bypass the normal laws that are required for a traditional will (a will written by a non-military member).
Here are some scenarios where a traditional will usually wouldn’t be valid, but if done by military personnel, it may be:
- The will is verbally expressed (and not written anywhere)
- The will-maker is underage
- The will wasn’t witnessed properly
- Impaired physical/mental state
This also depends on state law, as military exceptions only apply in certain jurisdictions.
How to get a soldier and sailor will (a.k.a. military will)
If you are able to, it’s always best to get a will following state laws. Even though many states allow relaxed requirements for military personnel (a.k.a., not requiring witnesses, etc.), you should still try your best to follow the laws anyway. Why? Because it will create more headaches for your beneficiaries after you pass. If your will doesn’t have witnesses or isn’t written down, it will take more time to prove in probate court that your will is legitimate. This can take months or even years to complete.
You’ll want to check with your state’s laws on what is required, but generally, most states require:
- The will-maker to be of sound mind and memory
- The will-maker puts the will in writing and signs it at the bottom of the document
- Two competent, disinterested witnesses attest to and sign the document
- Getting it notarized is not a requirement but can be a good additional add-on to help avoid any questions of fraud during probate
Do I need a lawyer to write my military will?
Nope! Military wills do not need to be written by a lawyer to be valid. In fact, even wills written by non-military members do not require a lawyer. Anyone can write their own will; they just need to make sure they follow the state laws regarding the legal requirements for a valid will. For example, most states require wills to be in writing, signed, and witnessed by at least two competent witnesses. However, hiring a lawyer, especially one specialized in military estate planning, can be beneficial to ensure your will meets the legal requirements and is customized to meet your needs.
What to put into a military will
Let’s talk about the different provisions to consider putting into your will as military personnel. Here are some things to consider:
- Designate beneficiaries: Make sure to call out who you want to get your stuff specifically (these are called your beneficiaries). This can be anyone you want—it doesn’t have to be your direct heirs by law. You can devise a percentage of your estate to a beneficiary or a specific asset (I give 10% of my estate to my Mom vs. I give my Mom my record collection).
- Guardianship: You can use a military will to appoint guardians for minor children. However, if you have a surviving spouse who is the other legal parent of your minor child, that is who will typically take guardianship. Therefore, you may want to appoint a guardian in case both parents pass away or are otherwise unable to care for the children. You may also want to designate a backup guardian in case your first choice is unable or unwilling to serve.
- Appointing a will executor: While it is not necessary to create a valid will, it is best practice to appoint a will executor (someone who manages your estate when you die) in your will. This person will be in charge of probate and making sure your beneficiaries get their portion of your estate. If you are deployed or living overseas, it may be helpful to choose someone who is easily reachable and who understands your unique needs (such as someone who is familiar with military life).
- Final arrangements: A military will lay out how you want your final arrangements (funeral, burial, wake, etc.) to look. Things to consider: Do you want a military funeral with honors, including a flag draping and a 21-gun salute? Do you have a preferred burial location, such as a veterans’ cemetery, or would you prefer cremation? Are there any specific rituals or traditions you want to be followed during your memorial service? These decisions can be included in a will.
- Note on military life insurance: It’s important to understand that SGLI (Military life insurance) cannot be devised through a will. You need to designate a beneficiary for SGLI through the insurance company, not through a will. It is crucial to ensure that your SGLI beneficiary designation is up-to-date.
The importance of updating the will
Things change, assets come and go, people in your life change, and your desires change, as well. Maybe you got married, had children, or got divorced, and this completely changes your intent for your will. Maybe you have much more money and assets to devise now, so your will is outdated. Whatever the case may be—updating your will is crucial—especially if you created it on a whim during deployment or combat. For example, if you scribbled down on a scrap of paper how you want your assets to be devised and you handed it to a fellow military friend, you may want to execute a formal will, later on to revoke that previous will and ensure your current intentions are met.
Other estate planning tools to consider as military personnel
A will is a document that devises assets, makes final arrangements, and can also appoint guardianship. However, there are other matters to consider, such as what happens to you if you become incapacitated and cannot make your own decisions. You can create a living will (a.k.a. advance medical directive) to lay out your medical preferences, such as whether you want to remain on life support or certain pain management treatments. This is particularly important for service members who may be exposed to combat or dangerous conditions, where the possibility of injury is high.
In addition, if you become incapacitated, you can create a medical and regular power of attorney to allow you to appoint another person or people to make your medical and financial decisions on your behalf. This person or people can basically act as your agent and make decisions like whether to keep you on life support and how to manage your financial and legal affairs.
If you’re deployed, consider ensuring that these documents can be accessed in case of an emergency while you’re away from home. This might involve keeping a copy in your personal effects and ensuring your spouse, partner, or trusted friend knows where it is.
The bottom line on soldier’s and sailor’s wills
In conclusion, a soldier’s and sailor’s will is simply another name for a will created by a member of the military. Soldier’s and sailor’s wills may benefit from relaxed legal requirements, depending on the state law. In addition, military members may have other considerations to think about when drafting a will, such as how guardianship for minors would work and how their military benefits play into their estate plans. As always, contact your local JAG office or other military-focused attorneys to discuss your estate planning needs. And don’t forget that creating a will as a military member is the ultimate way to protect your loved ones and create peace of mind.
Katherine (Kathy) Bakes is the founder and managing attorney of Bakes Law LLC. Her eleven years of practice involves all aspects of family law, including the formation of prenuptial and postnuptial agreements, divorce and legal separations, child custody, child support, and visitation agreements, spousal support and financial settlements. Kathy also engages in the practice of estate planning including the formation of wills, revocable and irrevocable trusts, durable powers of attorney, health care proxies, HIPAA authorizations and living wills. Kathy is a member of both the Connecticut and Massachusetts state bars after receiving her Juris Doctorate degree from New England Law | Boston. Kathy lives in Southport, CT with her husband and toddler. Outside the office, Kathy enjoys playing the piano and teaches music education to students of all ages.
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