A will is an essential legal document that clarifies what happens to an individual’s assets after they die. It defines the assets that compose the estate, the beneficiaries, the executor, the caretaker of the children and pets, if any, and the testator’s funeral instructions. Despite its importance, two-thirds of Americans don’t have a will.
Individuals who want to dispose of their property via a will have many different options to choose from. In some cases, the best option is a holographic will. What is a holographic will? Basically, it’s a handwritten will, but there are some important things to keep in mind if you’re considering that option.
What Happens if Someone Dies With No Will?
Before we discuss holographic wills, it’s important to cover the importance of wills in general. This is best explained by illustrating what happens when you don’t have a will in place.
To die without a will is to die intestate. Dying intestate can create difficulties for your next of kin because they have to go through probate where your assets will be divided and distributed according to the laws of your state, not according to your specific wishes. A will clearly explains directives for your assets after you die, so dying without one can create significant confusion.
If your loved ones go through the probate process without having a will, they will have to work through the probate court to determine what assets you possessed, how your debts and taxes will be paid, and how your remaining assets and property will be divided among surviving family members.
What Are the Different Types of Wills?
Depending on a person’s circumstances, one type of will may be more appropriate than another. Attested written wills are the most common kind. These must be typed and printed, and they require two witnesses who see the signing of the document firsthand (or hear the declaration). Some other will types include:
What Is a Holographic Will? The Basics
Holographic wills are handwritten wills that must be written and signed by the testator (the person leaving the will). Ordinarily, a will is created with the help of an attorney, but in the case of holographic wills, no attorney is needed: The testator typically handwrites and signs their directive without legal representation.
These wills are not as popular as simple or basic wills. However, holographic wills are a perfect option for individuals who want to leave instructions for the distribution of their assets and name their beneficiaries. They are extremely helpful for individuals who:
- Want a “quicker” and “easier” will
- Desire the freedom to write their own statements as to the reasons why they’ve chosen to dispose of their property the way they wanted
- Have uncomplicated estates
- Can’t afford legal representation or prefer not to hire an attorney
- Prefer not to have witnesses present (it’s still advisable to have two witnesses to avoid issues in probate)
- Are actively experiencing a life-threatening medical emergency with a poor prognosis
Does a Holographic Will Need to be Witnessed?
What is a holographic will’s validity without witnesses or notarization? Unlike other kinds of wills, holographic wills typically do stand up to scrutiny. Considering wills of this type are sometimes made during emergencies or in extremis, it makes sense that there may be circumstances in which there is no one available to be a witness.
The absence of witnesses can lead to issues in probate, and courts may have problems ascertaining the will’s legitimacy if it’s illegible. So, it’s typically best to err on the side of caution and have two witnesses present.
Requirements for a Holographic Will to be Valid
To what extent is a holographic will valid? There are some specific requirements holographic wills must meet to be considered legitimate. A court of law in some states may recognize the holographic will if the following factors are met:
- The person creating the will is 18 years or older
- The person is of sound mind (e.g., they understand what’s in their estate and how they are disposing of it)
- Everything must be in the handwriting of the person creating the will
- Previous wills must be “revoked”
- The will must testify that it is the “last will and testament”
- The person making the will must identify your beneficiaries
- The will distributes assets using precise language
- The will must be signed and dated
- Each page number must be written on the bottom (e.g., Page 3 of 4)
What States Recognize a Holographic Will?
Before assuming you can create a valid holographic will, it’s essential to know whether it will be recognized as valid. The following states will generally recognize a holographic will written within their boundaries:
- New Jersey
- North Carolina
- North Dakota
- South Dakota
- West Virginia
Maryland and New York typically don’t accept holographic wills, but they make exceptions for military members. New York also makes an exception for mariners at sea. Maryland makes an exception if the holographic will was signed by the testator and witnessed by two credible witnesses.
Additionally, if the holographic will was drafted in a state where they are accepted, but then the testator moves to a state that doesn’t accept holographic wills, the probate court of the testator’s new resident state may choose to accept the will as valid.
Situations That May Invalidate a Holographic Will
There’s no guarantee that a court will recognize a holographic will. The following issues are common and could invalidate a holographic will:
- Evidentiary issues
- Failure to dispose of the entire estate
- Challenges by family members regarding the will’s authenticity
If you decide to use a holographic will, make sure you live in a state that acknowledges them, and follow the guidelines mentioned above to create a valid holographic will. This ensures that your will passes legal muster and enables your estate to be divided according to your wishes.
Consider a Free Legal Review to Ensure That Your Will Is Legally Sound
Do you have a complex estate? Do you have questions or concerns about whether your holographic will stands up to probate scrutiny? Consider scheduling a free legal evaluation with an experienced probate attorney who can guide you through the probate process.