If you simply take pen and paper and write down your wishes for who you want to inherit your property, have you created a legally binding will? Maybe. It depends on which state you live in. It’s always best, whether you go to a lawyer or prepare your own will with the help of a book, software or website, to print out the final document, proofread it carefully, and sign it in front of two witnesses. That’s the standard procedure for executing a will in every state.
Proving the Validity of a Holographic Will
After the person who wrote the will has passed away, it’s more difficult to prove the validity of a holographic will in probate court. The whole point of having witnesses watch you sign your will, after all, is so that if there’s any question about the will’s validity, the witnesses can come to court and testify. They can state that they heard you say the document you were signing was your will, and that you seemed aware of what you were doing and were not under the undue influence of someone hoping to inherit from you.
First, there must be evidence that the handwriting is in fact that of the person who has died. This may be supplied by the testimony of people who were familiar with the person’s handwriting, or if there is an argument over the will’s validity, by an expert in handwriting analysis. In addition, there can be questions about your intent. Because holographic wills don’t have any witnesses, the circumstances surrounding the signing of the will aren’t usually known. Was it really your will, or just some notes you were making as you thought about writing a formal will? Did you change your mind later and just forget about the document?
Should You Make a Holographic Will?
A holographic will might sound simpler than a formal, computer-generated and witnessed one, but it’s not a good idea, for all these reasons just discussed. It’s always preferable to make a formal will, printed out from your computer and signed and dated in the presence of two witnesses.
If you’re concerned about privacy, and don’t want your witnesses to know the terms of your will, don’t worry. Witnesses don’t read your will—all they need to know is that the document you’re signing, and which they will also sign, is your will. It’s not common, but executors sometimes come across a handwritten will, signed by the deceased person but without any witnesses’ signatures. You might not even recognize the document as a will at first—but if, on closer inspection, it reads like a will, you may have what lawyers call a “holographic will” on your hands.
Is it legally binding? The answer generally depends on which state the deceased person lived in when he or she created the will.
Is It Really a Will?
The first question to ask is whether or not the document you’ve found was really meant to be a will. The person might just have been making some notes, in preparation for writing a real will. Look for evidence that the writer intended the document to serve as a will, including:
Proving the Validity of a Holographic Will
After the person who wrote the will has passed away, it’s more difficult to prove the validity of a holographic will in probate court. The whole point of having witnesses watch someone sign a will, after all, is so that if there’s any question about the will’s validity, the witnesses can come to court and testify. They can state that they heard the person say the document being signed was his or her will, and that the person seemed aware of what he or she was doing and was not under the undue influence of someone hoping to inherit.
If you’re an executor submitting a holographic will to probate, you must show:
The entire will, or at least all the significant parts, is in the handwriting of the deceased person. That means a fill-in-the-blanks will form isn’t valid if the important parts—the clauses that leave property are preprinted. There must be evidence that the handwriting and signature are in fact those of the person who has died. This may be supplied by the testimony of people who were familiar with the person’s handwriting, or if there is an argument over the will’s validity, by an expert in handwriting analysis. The person intended the document to serve as a will.
There are a number of advantages to using a holographic will that are described below.
Lower Cost
A holographic will is written by the testator himself. Therefore, there is not usually much expense involved in comparison to an attested will that may be prepared by a lawyer. This also makes it easier for middle income and lower income individuals to have a will in existence.
Convenience
Holographic wills can be drafted with a mere paper and pen. If a person knows that he or she is about to undergo surgery or an important medical procedure, he or she may quickly draft such a will without having to worry about the same formalities as attested wills, such as the requirement of having witnesses available.
Greater Control
Some individuals may feel more in control of the process if they write the will themselves rather than rely on a legal representative to convey the information. They may also feel more inclined to provide more details if they feel that the process is more private. For example, they may provide more information about why they chose to dispose of their property in a particular manner.
The advantages of making a holographic will must be weighed against the disadvantages of using it.
Legal Validity
As stated previously, some states do not recognize these types of wills. If a person makes one anyway, his or her intended beneficiaries may be left empty-handed because the estate passes through the laws of intestacy. Even in states that do recognize them, there may be additional legal issues that can invalidate the will.
Lack of Provisions
A layperson may not be familiar with the various provisions that are part of typical wills. They may make provisions in the will that may not be valid and simply leave out other provisions. For example, some states allow a will to establish a testamentary trust while others do not. The will may lack enough provisions to effectively dispose of all of the property of the estate, making the residue of the estate pass through the laws of intestacy. Testators may forget to name a guardian for minor children, leaving their final wishes unspoken.
Difficulty Locating a Will
A holographic will may be made by the testator and placed somewhere that only he is aware of. A will prepared by a lawyer may be filed with the probate clerk ahead of time in states that allow it. Alternatively, a spouse may know the testator’s estate lawyer and be able to contact him or her for a duplicate original of the will or to learn about instructions about the safekeeping of the will.
Difficulty for Witnesses
Several witnesses may have to verify the testator’s capacity and signature. This may require time and travel on behalf of these witnesses. An attested will can often be accompanied by a self-proving affidavit, allowing the witnesses not to be worried about being hauled into court.
Expenses After Death
Rather than paying for a lawyer upfront, the testator’s beneficiaries or the estate may be subjected to additional expenses after the testator’s death. For example, the will may be contested, resulting in larger legal fees. The case may be more difficult with no witnesses to verify that the testator appeared to be of sound mind and not influenced by fraud or duress.
Reconstruction
Lay individuals may not be familiar with various legal terms. They may write the will in a way that makes sense to them. However, when the will is in front of a judge, he or she may find that the will does not make sense. He or she may then adjust the will according to his or her own personal beliefs.
The most common time for someone to make a holographic will is when he or she is in imminent danger of death, and has not already made a will or wishes to change a will. Typical examples of such situations would include a soldier on the battlefield, someone lost in the wilderness who doesn’t expect to survive, a person on an airplane about to crash, or a person trapped in a burning building.
Legal Requirements
In order for a holographic will to be valid, it must:
To prove the validity of a holographic will, many states require the testimony of various types and numbers of witnesses. Some require the testimony of witnesses who saw the testator write and sign the will, while others require witnesses to identify the handwriting as that of the testator. The handwriting may be identified by people who know the testator and his or her handwriting, or by the testimony of a handwriting expert.
In Utah, testimony is also required to establish that a holographic will was: “Found after the testator’s death among the testator’s valuable papers or effects, or in a safe-deposit box or other safe place where it was deposited by the testator or under the testator’s authority, or in the possession or custody of some person with whom, or some firm or corporation with which, it was deposited by the testator or under the testator’s authority for safekeeping.”
As with any will, a holographic will could be contested for a number of reasons, such as a claim that the testator lacked the mental capacity to make a will (this is presumed unless there is evidence to the contrary). Writing a will as a holographic will should only be done in an emergency situation as a last resort and only if you know such a will is legally accepted in the state or states where you have property. It is much better for you to make your own will that complies with your state’s laws, and has the necessary number of witnesses.
What to Include in a Holographic Will
A quick note to your sons bequeathing your collection of power tools to them may seem sufficient. This is especially true if you find yourself in a dire situation and have few other options. But even the most basic Holographic Wills should contain these three parts:
This can include:
How to Create a Legally Binding Will That is Valid Everywhere
A Holographic Will may get the job done in a dire or emergent situation, location permitting. However, they should be considered a last resort. You want to know that your family is taken care of after you’re gone. That your daughter knows about the stocks you have been holding onto for years; and that your grandmother’s wedding ring makes it to your granddaughter’s hand when the time comes. Don’t wait until there is an emergency and you have no other choice but to hurriedly write down the information that your family needs and hope that you didn’t forget anything. You can ensure that your estate is taken care of and your last wishes carried out when you create a Will online with Ascent Law Firm
Ascent Law Firm attorneys makes it easy to create a customized, legally binding Will that is valid everywhere by just contacting them ASAP!!!
