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Holographic Will – Is a Handwritten Will Valid – What to Include

What Is a Holographic Will?

Holographic WillA holographic will is a document that is handwritten and signed by the person who is writing the will and giving the legacy. Unwitnessed, a holographic will is valid in about half the U.S. states.  However, if properly witnessed, it can be valid in all 50 states.  Ideally, a will should be witnessed according to the laws in your state. Most states require two witnesses.  By signing as witnesses, they confirm that the will was written by the person giving the legacy. Some courts accept holographic wills without witnesses.  However, it can be difficult to prove a will’s validity without witnesses if it is challenged in court.

A holographic will is a handwritten and testator-signed document.  It is an alternative to a will produced by a lawyer. Some states do not recognize holographic wills. States that do permit holographic will require the document to meet specific requirements to be valid. The minimal requirements for most states are proof that the testator wrote the will.  Also, evidence that the testator had the mental capacity to write the will.  Finally, the will must contain the testator’s wish to disburse personal property to beneficiaries.

Holographic Will – Overview

The good news is that a holographic will does not necessarily need to be witnessed or notarized.  The bad news is they are valid in only about half the states if not properly witnessed.  Also, this can lead to legal challenges during validation in probate court. To avoid fraud, most states require that a holographic will contain the maker’s signature. However, the courts will have to determine whether the will was signed in the testator’s signature and by the testator’s hand. Handwriting experts or people familiar with the decedents’ handwriting must convince the court that the signature was indeed that of the deceased. Problems arise when the handwriting is vague or illegible.

As with any will, a testator to a holographic will must be explicit as to named beneficiaries and receipt of property or assets, such as stocks, bonds, and fund accounts. The testator may also detail circumstances for recipients to meet to receive named assets. Some lawyers recommend that explaining why specific property or other assets such as securities would be left to which beneficiaries would indicate that the testator was of sound mind. Being of sound mind is a crucial provision in determining the validity of a holographic will. Also, a holographic will argued in probate court may not contain the testator’s final wishes. The decedent may have written the holographic will as a draft or may have utterly forgotten to update it. These questions may be brought up in court.  (Source: investopedia.com)

Requirements 

To be legally valid, a holographic will:

  • Must be written entirely in the testator’s handwriting. A testator is a person writing the will and giving the legacy.  You shouldn’t ever mix handwritten and typed parts of your will — choose one or the other to avoid confusion. If you need to make changes to your handwritten will, avoid crossing out or writing over parts. This can make it messy and difficult to read. Instead, you should rewrite your entire will by hand. Consider saving time and effort by using an online will-maker, where you can update or remake your will at any time.
  • Must be signed by the testator. This is very important. The will isn’t valid without the testator’s signature.
  • Should include the same basic components as any will. This includes naming heirs to receive property and appointing guardians for minor children.  It should also name an executor, someone to carry out the wishes stated in the will.
  • Ideally, it should be witnessed according to the laws of the state. Most states require two witnesses who, by signing, confirm that the will was written by the testator. Some courts accept holographic wills without witnesses.  However, it can be difficult to prove the will’s validity without them. Estate attorneys always recommend properly witnessing a will, regardless of which type.

Where Are Holographic Wills Accepted?

Each state’s probate laws ultimately decide the treatment of all wills within its borders. About half of the states will accept holographic wills to varying degrees.   However, in some states, holographic wills made within its jurisdiction are not recognized. In New York and Maryland, holographic wills are only recognized if they are made by an Armed Forces member. In Maryland, these wills remain valid only for one year after the testator leaves the Armed Forces unless they are no longer of sound mind under the law at that time. New York law states that such a will is valid for one year after the testator is discharged from the Armed Forces, or for one year after they regain a testamentary capacity, whichever happens first.

Some states will accept holographic wills to varying degrees. These states 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. In some states, holographic wills made within the state are not recognized, but such wills that are made within jurisdictions where holographic wills are recognized are accepted under foreign wills provisions. In order for a holographic will to be recognized as valid under a foreign wills provision where this practice is legal, the holographic will must have been made in a jurisdiction that recognizes holographic wills. States with foreign wills or foreign testament provisions include Alabama, Connecticut, Delaware, Iowa, Minnesota, New Mexico, Rhode Island, South Carolina, and Washington. (Source: ibid)

Holographic Will – Limitations

The first question a probate court will ask is whether or not the document was really meant to be a will. The person might just have been making some notes, in preparation for writing a real will. Therefore, they will look for evidence that the writer intended the document to serve as a will.  Also, that the testator actually wrote and signed the document.

  • It is easy to make mistakes in a handwritten document – Errors can cause confusion or make the will invalid. For example, one could forget to include an important item or use incorrect language that calls its validity into question. Also, messy handwriting and legibility could cause problems with interpretation.
  • Validity can be difficult to prove. For the court to accept a will, it must be clear it was intended for the document to serve as a last will and testament. If this is unclear, descendants could challenge a will’s validity, resulting in delays and confusion. This can happen if the document is not declared to serve as a will.  Also, without witnesses, handwriting is the only method available to prove who actually wrote it.
  • State laws for a holographic vary widely. Some states don’t accept holographic wills at all. Other states only accept them for members of the U.S. military who are currently on active duty. To complicate matters, state laws change. Even if a state currently accepts holographic wills, the law could change in the future.

When Would Someone Write a Holographic Will?

There is a variety of software, books, and websites with detailed instructions on how to create and print a valid will.  Following these simple instructions can help to avoid many probate court problems. If a will is printed as opposed to being handwritten, it requires the witness of at least two people.

The most common time for someone to make a holographic will is when he or she is in imminent danger of death.  This would create an urgency for a person who has not already made a will or one who wishes to change a will.  For example, a soldier on the battlefield, someone lost in the wilderness who doesn’t expect to survive, or a person on an airplane about to crash.

Up Next: What Does Baptism by Fire Mean?

Baptism by FireBaptism by Fire refers to being thrown into a difficult situation with little or no preparation and surviving through wits and determination.

In business, the phrase is commonly used to describe a person or employee who is learning something the hard way through great difficulty.  If a new employee has a baptism of fire, they immediately have to cope with many difficult problems and obstacles.  If an employee successfully passes this ordeal, they should be able to handle any other situation that the job may later present.  The phrase has come to mean any unpleasant experience where a difficult lesson is learned.

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