Washington’s Will: Lessons from a Founder Who Went Without a Lawyer

George Washington died on December 14, 1799 at the age of sixty-seven. He was survived by his beloved wife Martha of forty years and left behind an estate worth at least $530,000. By some measures of relative economic wealth, George Washington’s estate would be valued at well over $500 million today.

Yet, despite having spent much of his life surrounded by the preeminent lawyers and jurists of his era, Washington did not rely upon an attorney in devising his estate plan. Rather, Washington took it upon himself to draft a nearly 30-page handwritten will in which he frankly acknowledged that “no professional character has been consulted, or has had any Agency in the draught. . . .” Over 225 years later, that same document still resides with the Fairfax County courts that admitted it to probate on January 20, 1800.

To be sure, Washington's last will and testament was impressive. It clearly disposed of cherished personal items, including a gold-headed cane given to him by Benjamin Franklin, several battle swords, and Washington’s own personal papers. The will also forgave multiple debtors while directing the reinvestment of other monies due for the benefit of surviving family members. Additionally, it ensured the distribution of 170 combined shares in the Bank of Alexandria, Potomac Company, and James River Company for charitable and educational purposes, at times to be held in trust. 

Washington further bequeathed tens of thousands of acres across several states and the western frontier to the beneficiaries of his estate, often accompanied by precise geographical descriptions.  The will was followed by a lengthy schedule of assets, which included a meticulous accounting of livestock, real estate holdings, and securities.

Most importantly, Washington freed his longtime enslaved valet William Lee immediately and provided for the manumission of 122 other enslaved persons upon Martha’s death. Washington was the only Founding Father to grant large-scale manumission through his will, though Washington’s failure to do so during his lifetime remains a key moral failing.

The will’s extraordinary level of detail and depth of thought were commendable. They masked George Washington’s relative lack of formal education, of which he was always self-conscious. To some extent, the will may have even been Washington’s way of demonstrating his intellectual place among the Founders.

Yet, Washington’s will also contained numerous imperfections that could have been remedied by able legal counsel.

To start with, Martha Washington’s expansive rights were not entirely clear. Even Supreme Court Justice Bushrod Washington, President Washington’s favorite nephew and one of seven executors of the estate, found it difficult to determine the full extent of Martha's rights under the will. At one point, Bushrod Washington even indicated that he would consult future Chief Justice John Marshall on such question, although it is unclear whether that consultation ever occurred. The estate’s size, complexity, and lay drafting likely contributed to it not being fully settled until 1847, nearly fifty years after Washington’s death.

Washington also appointed seven executors, including Martha, five nephews, and his step-grandson, without clearly delineating their respective responsibilities. Managing such a large group would have been challenging under any circumstance, particularly in an era when correspondence could take weeks. Ultimately, much of the responsibility fell to just two executors, Bushrod Washington and Lawrence Lewis. While it was not uncommon to have multiple executors at the time, a clearer division of their responsibilities might have simplified the administration of an already extraordinarily complicated estate.

Lastly, Washington retained two different wills until mere hours before his death. While lying on his deathbed and barely able to speak, Washington asked Martha to retrieve both documents from his desk, at which point he directed her to burn one and preserve the other. Although the surviving will expressly revoked all previous wills, retaining both documents in the same location created unnecessary risk. Had Washington died suddenly, someone with access to his desk might have concealed or destroyed the operative will and presented the superseded document instead. Able counsel could have guided Washington to fully organize his estate documentation ahead of time in case of emergency.

Today, there is no question that someone of Washington’s means and stature would hire a skilled estate planning attorney. Estate law and taxation have grown inordinately complex and even the most informed layperson would have to understand elaborate concepts such as the unified estate and gift tax exclusion, deceased spousal unused exclusion, and generation-skipping transfer tax to make informed decisions. These notions simply did not exist in Washington’s era, nor did the federal estate tax itself.

There is also no doubt that in today’s age, Washington’s estate would have been devised through a series of trusts, rather than relying upon a single last will and testament. Whether utilizing a qualified terminable interest property trust, charitable remainder annuity trust, or some other sophisticated estate planning vehicle, careful planning would allow Washington to transfer his assets in the most tax efficient and private manner.

Upon Washington’s death, his friend Congressman Henry “Light-Horse Harry” Lee III eulogized Washington as “first in war, first in peace, and first in the hearts of his countrymen.” Indeed, during the course of the American Revolution, Washington was able to unite soldiers from thirteen disparate colonies into a unified fighting force. Even Washington’s critics believed that he alone was capable of maintaining the fractured nation in its early years of independence. However, as indispensable as he was, at every stage of Washington’s life, he received help from family, friends, mentors, and allies. He was keenly aware of his limitations and relied on skilled advisors, such as Alexander Hamilton, a New York lawyer, to make key decisions impacting the country. Why he did not seek legal counsel for his own estate remains a mystery.

We can learn an immense amount about honor, discipline, leadership, and courage from Washington. He was a singular figure in our history without whom we would not have achieved independence. However, his estate plan is not one worth emulating. As impressive as his nearly thirty-page handwritten will may have been, Washington had the means to seek legal counsel and would have been better off had he done so.