A holographic will is a handwritten and signed document that serves as a valid will if all the other elements are satisfied. Depending on which state you reside in, you need to determine whether or not holographic will is accepted. States that do allow holographic wills mandate that the document meets specific requirements to be valid. Some of these minimum requirements include that:
- Testator drafted the will;
- There is evidence that the testator is of sound mind and could write the will and;
- The will must contain the testator’s intention to disburse personal property to beneficiaries.
Moreover, some states require that the entire document be written in your handwriting to be enforceable. Other requirements include that any part of it cannot be typed. The entirety of the document must be handwritten in your writing to be considered a holographic will. Also, it must be legible for others to read and recognize the words.
However, holographic will not need to be witnessed or notarized, but this may cause issues during the validation process in probate court. Therefore, to ensure that the will does not require any issues, it is highly recommended to contain the creator’s signature. The courts will verify the signature and determine if it meets the requirements. Moreover, the courts can seek out handwriting experts to prove that the signature is from the actual handwriting of the deceased. Problems arise when the handwriting is vague or illegible.
The will must provide specific instructions on how the assets will be divided and who receives the assets. Additionally, the will-maker must detail the circumstances for recipients to meet to receive the named assets. Doing this will prevent further issues on property distribution and demonstrate that the testator had a sound mind because being of sound mind is a crucial element in determining the validity of a holographic will.
If the holographic will is printed instead of being handwritten it requires the witness of at least two people. Since the holographic will be argued in probate court, questions will be brought up regarding its content. You will find information on how to draft a proper will and determine whether it meets that state’s standards.
Where Are Holographic Wills Accepted?
According to Investopedia, the state decides whether or not to validate holographic wills. The following states permit the use of holographic will with attached restrictions. These states are 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, Wisconsin, and Wyoming.
In some states, the holographic wills created within the state are not recognized, but the wills created within jurisdictions where holographic wills are recognized are accepted under foreign will provisions. For these foreign will provisions to apply, the holographic will must be formed in a state where it is permitted. Jurisdictions with foreign wills or testament provisions include Alabama, Connecticut, Delaware, Iowa, Minnesota, New Mexico, Rhode Island, South Carolina, and Washington.
However, in Maryland and New York, holographic wills are only available to armed forces members. There are time limitations for one year, depending on when they leave the Armed Forces. Furthermore, in New York, a holographic will is valid for one year after the testator is discharged from the Armed Forces or one year after they regain a testamentary capacity, whichever occurs first.
What Are the Pros of Holographic Wills?
As with any legal process, there will be some advantages and disadvantages. As with a holographic will, utilizing it has some pros and drawbacks. Keep in mind that a holographic will is handwritten by the testator. Therefore, the cost is lower because no legal costs are included in obtaining a lawyer and having them serve you. This is a more affordable option for many people seeking to draft a will on their own without the involvement of other third parties.
Holographic wills are simply composed of mere paper and a pen. If a person wishes to write about their wishes when going through a terminal illness or other health issues, they can do so without legal formalities. Moreover, they would not need to worry about having witnesses available to complete the process.
Lastly, there is a sense of more control and authority over drafting the will process because the person handwrites it. You are free to include the instructions you want for distributing the property and to whom. This way, the process stays private, and you can be assured it is your last wish on the will.
What Are the Cons of Holographic Wills?
Although there are some advantages to utilizing holographic wills, there are certainly some disadvantages that you must consider before considering a holographic will. As mentioned earlier, some states fail to recognize these types of wills.
However, if someone decides to draft one anyways without determining whether or not it is valid in their state will risk the beneficiaries being left empty-handed because the estate passes through the laws of intestacy. Also, even though a state may recognize the holographic, you may need to deal with other issues regarding its legal validity.
Furthermore, the holographic will may not have all the necessary terms needed for it to be a valid will. The will may lack enough provisions to dispose of the estate’s property effectively. This may cause the residue of the estate to pass through the laws of intestacy, which could be against the testator’s wishes.
Another important point to remember is the knowledge of the location of the holographic will. Only the creator of the will could be aware of its whereabouts. But, if the estate attorney properly prepares a will, it will be processed at the proper time and place. Also, the lawyer will file in the state where the will is recognized and will be validated through.
Witnesses must verify the testator’s capacity and signature to verify the will. This may require time and travel on behalf of these witnesses. But, an attested will can be accompanied by a self-proving affidavit. This provides convenience and flexibility for the witnesses, and they would not need to worry about being brought into court.
Furthermore, additional charges may come up after the testator’s death. For instance, the will may be contested, resulting in higher legal fees. The case can become even more complicated if there are no witnesses to verify that the testator was of sound mind and not influenced by fraud or duress.
A layperson is unaware of the proper legal terms to use in wills. They will most likely draft a will that they consider appropriate. However, when the will is in front of a judge, they may find that it does not meet the standards or makes sense.
When Do I Need to Contact a Lawyer?
Holographic wills can easily become complicated to validate. It must be handwritten by the creator of the will and meet all the requirements to be recognized.
If you have a holographic will and are having trouble with the probate process, you can contact a local will lawyer to help you. Each jurisdiction has regulations regarding this type of will; if you want it to be legally binding, you must follow through.
