A holographic will is a handwritten document created and signed by the testator. It is a more accessible and no-cost alternative to a last will and testament usually drafted with attorneys’ help. These documents do not require notarization or the presence of two witnesses. That’s why it can be hard to prove its validity after the testator’s death.
A holographic will is not recognized in all states. States where a holographic will is a permissible estate document mandate it to meet specific requirements to be legally valid.
These are some major state requirements for holographic wills:
- Proof that the will has been written by the testator
- Evidence that the testator was mentally sound during the time they wrote the will
- Contents of the will clearly highlight the testator’s wish to disburse their personal property and assets to beneficiaries
When to Use a Holographic Will?
There are various advantages of using holographic wills to arrange and distribute all your assets and property after death. However, the state law where this will is made should accept holographic wills as legally binding for probate court. A valid holographic will can be beneficial for the following reasons:
A holographic will barely requires any expense, as it’s written by the testator themself. It also becomes a viable option for estate planning for lower-income and middle-income individuals. Therefore, it is much more cost-effective as compared to a last will made by an attorney or through any online platform providing legal forms.
A handwritten will requires only paper and pen. The entire will can be prepared in a person’s handwriting. Such a will especially comes in handy when the testator is suddenly about to undergo an essential medical procedure or surgery. They can then quickly draft a holographic will that would contain all detailed instructions as to the distribution of their property among the beneficiaries and the testator’s signature.
A holographic will can also make some individuals feel more in control of the process of their estate planning when they make a handwritten will, rather than relying on a lawyer and paying legal fees to convey the information. They can also provide more intimate details as to the reasons behind the disbursement of their property to the beneficiaries in an intended way.
Where Are Holographic Wills Recognized?
Handwritten or holographic wills are only accepted in some states. However, the requirements may vary from one state to another.
The states which accept a holographic will to a certain extent include Alaska, Arizona, Arkansas, California, Colorado, Hawaii, Idaho, Kentucky, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, New Jersey, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming.
Some states that do not recognize holographic wills may duly recognize such wills made within jurisdictions where holographic wills are legally valid under the foreign provisions. States that follow foreign testament provisions regarding holographic wills are Alabama, Connecticut, Delaware, Iowa, Minnesota, New Mexico, Rhode Island, South Carolina, and Washington.
In Maryland and New York, a holographic will is recognized only if made and written by a member of the Armed Forces. In the case of Maryland, this document remains valid only for one year after the testator leaves the military service if they are of sound mind under the law at that time.
On the other hand, in New York, a holographic will is only valid for a year after the testator is discharged from the Armed Forces or for one year after they gain the testamentary capacity back, whichever occurs earlier.
Legal Requirements for a Holographic Will
After the decedent’s death, it becomes imperative to prove the validity of a handwritten will in probate court. There are some significant requirements in order for a handwritten will to be legally valid:
- The will should be entirely in the testator’s handwriting. For this, there must be concrete evidence that the handwriting is that of the testator. In the absence of the requirement of two witnesses being present during the making of will and signing of the will by the testator, this may be assessed by the testimony of the people who were familiar with the decedent’s handwriting or by an expert in handwriting analysis.
- The testator must be mentally able to write the will.
- The will should indicate the testator’s complete intent behind making the will and must clearly state the beneficiaries and what they will be entitled to acquire after the execution of the will.
- The will must be signed by the testator, and some state laws require a handwritten will to be dated (California, Louisiana, Michigan, Nebraska, and Nevada).
The will’s validity will be assessed by the presence of the requirements mentioned above during the disposition of the testator’s assets and property in the desired manner.
The Risks of Using a Holographic Will
While a holographic will can be drafted immediately and with minimum expenses, there are various issues involved with this handwritten document. Your last will lists out the allocation and disposal of your property to your beneficiaries. One would always prefer a seamless process for their loved ones regarding their estate disposition. The various risks involved with this document are as follows:
Threats to Validity
Firstly, some states do not recognize handwritten wills, which may lead to the estate passing through the laws of intestacy (or dying with no will), leaving the beneficiaries fighting the validity of a last will and testament in a court of law.
For any state that recognizes holographic wills, additional legal issues may be involved that may invalidate this simple will, such as the absence of witnesses and notarization.
Lack of Clarity
Since the testator writes their will, they might be unfamiliar with the provisions that need to be incorporated in a will. They also might write a will in a manner that only makes sense to them and contains a lot of ambiguities when scrutinized by the court during the probate process. Such a will may also be inadequate as lacking provisions that may be instrumental in the effective disposal of the testator’s property. This lack of clarity can often cause problems for the beneficiaries.
Expenses After Death
The beneficiaries of a handwritten will may be subjected to additional expenses after the testator’s death. If such a will is contested, it may lead to employing legal services, resulting in substantial legal fees. The case may also be more difficult because of the absence of witnesses who generally verify that the testator was mentally sound while making the will and that there was no undue influence during the witnesses’ watch.
Hassle for Witnesses
Several witnesses may have to be required to verify the testator’s signature and mental capacity. Quite contrarily, an attested will may be accompanied by a self-proving affidavit and witnesses’ signatures, which makes it much easier for the court to pass it off as a legally binding will.
Difficulty in Locating a Will
A testator may store the will in a safe deposit box that only they may be aware of. In such a case, there is a lot of trouble caused when locating the whereabouts of a holographic will.
Should You Use a Holographic Will?
Writing your own will does sound more straightforward and accessible than a computer-generated document, an online will, or a will made by a practicing attorney. Still, it has its fair share of risks involved. The testator’s handwriting may be unclear or full of mistakes. In addition, the person creating the document on their own may overlook or omit some crucial provisions. Therefore, it is always preferable to make a formal will in a printed format, signed and dated in the presence of two witnesses, as it’s much easier to process it in court as a legally valid will.