A holographic will is a handwritten alternative to a traditional last will and testament, which is prepared by an attorney. Holographic wills are written by hand, then signed by the person creating the will, who is called the testator.
Some, but not all, states recognize the legitimacy of holographic wills. In part, this is because they frequently cause issues during the probate process.
States that recognize holographic wills impose several requirements that a will must contain.
Anyone considering creating a holographic will should strongly consider consulting with an experienced estate planning law firm to avoid the potential pitfalls that can come along with a holographic will.
To put it simply, the phrase “last will and testament” is legal-speak for a will. A will is the cornerstone of any comprehensive estate plan.
Wills are legal documents that outline how a person wants their assets distributed when they die. They also can serve to name who the testator wants to take over the care of any minor children.
Most people draft a will because they want to have control over what happens with their belongings after their death. Those who die without a will are said to have died “intestate.”
If someone dies intestate, their assets will pass on to family members. However, this will be done according to the state’s intestate laws.
Intestate laws are inflexible rules that determine how property gets passed on. Rather than considering the deceased’s wishes, intestate laws look only to the number and relationships of the deceased’s surviving loved ones to determine who inherits what.
Most states accept at least some handwritten wills as valid wills. However, it’s not always easy to determine whether a will can be recognized by a state’s probate court.
The following 26 states recognize holographic wills, regardless of the state in which the will was drafted:
Alaska
Arizona
Arkansas
California
Colorado
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
Wyoming
Eight other states do not recognize holographic wills that are created within the state but accept holographic wills that were created in another state that allows them. These states include:
Hawaii
Iowa
Louisiana
Connecticut
Oregon
South Carolina
Washington
Wisconsin
Maryland and New York are even more restrictive when it comes to such wills. These states only allow members of the Armed Forces to create handwritten wills.
All other states either do not address holographic wills or expressly disallow them.
States that do allow holographic wills require these wills to contain certain elements. There are strict guidelines that a testator must follow when creating a handwritten will. Each state imposes its own rules, but generally, a holographic will must fulfill the following requirements:
All important parts of the document must be in the testator’s handwriting. (Some states require that the entire document be in the testator’s handwriting.)
The document must clearly state that the testator intended it to be a last will and testament.
The document must clearly describe the testator’s property and identify all beneficiaries.
The document must be signed by the testator.
In addition, the testator must have the mental capacity necessary to create a legally binding document.
Notably, one requirement that is missing from this list is that the handwritten will be notarized. Most states that allow handwritten wills do not require the document to be notarized.
However, some states impose a requirement that one or more people witness the signing of the will.
There are several reasons why someone might choose to use their own will, rather than visit an estate planning attorney. The following are the most common reasons why people create holographic wills:
Ease – Holographic wills are perhaps the easiest type of will to create. These wills can be written in one’s own home, in a person’s own handwriting, on their own time. In addition, there are not any overly burdensome requirements other than having the testator’s signature witnessed.
Economy – Many who choose to create a handwritten will do so to avoid the expense of hiring an estate planning attorney. Depending on the complexity of a situation, estate planning fees can add up. However, the more complicated an individual’s financial or family situation, the more likely it is that a holographic will won’t sufficiently address all their estate planning concerns.
Emergency – In the event of an emergency, a holographic will is not a bad option. Perhaps someone suddenly becomes very ill or is involved in a serious accident. In this situation, there may not be time to arrange to meet with a trust and estate lawyer.
Privacy – Some avoid working with an attorney because they do not want to share the intricacies of their financial situations and family relationships with an attorney. For these people, creating a holographic will may be a good option.
By definition, a holographic will is handwritten in the testator’s handwriting. That being the case, proving the validity of a holographic will can pose a challenge.
Some states require the testimony of a witness, affirming that the will is in the testator’s handwriting. This can be done either by someone who knew the testator personally or by a handwriting expert.
Far more often than attorney-created wills, holographic wills are frequently challenged in probate court. A few of the common reasons why a holographic will is challenged in court include:
The testator lacked the testamentary capacity to draft the document (i.e., they were not of sound mind).
The testator’s wishes were not made explicitly clear.
The document was only a draft, and not a final last will and testament.
The document was not in the handwriting of the testator.
The document did not contain the testator’s final wishes.
The testator failed to update the document after a major life change.
If a handwritten will is challenged in the court, frequently it will cause a major delay in the disbursement of any estate property.
In addition, such wills can lead to unnecessary litigation, family feuds, and the depletion of estate assets due to ongoing attorney fees.
Handwritten wills are easier and cheaper to create than those created by an attorney. However, they also come with a number of drawbacks. The biggest downsides of a holographic will include issues of:
Validity – State law varies in terms of ruling whether a holographic will is valid. If someone with a holographic will dies in a state that does not accept handwritten wills, the entire will won't have any effect.
Location – Unless a testator tells another person where they stored their will, surviving loved ones may have a difficult time finding the will. On the other hand, when an attorney creates a will, they keep a copy in their office for easy retrieval.
Incompleteness – Perhaps the main concern with handwritten wills is that they are unlikely to address all of an individual’s estate planning needs.
Someone unfamiliar with trust and estate law may not be aware of certain laws or restrictions on how property is passed on at the time of death.
In some situations, an individual may think they’ve covered all their assets but may forget about certain important belongings.
In other scenarios, a testator may write the will in language that makes sense to them, but may not make sense to the judge, who will ultimately be the one interpreting the will.
Ultimately, the decision about whether to create a handwritten will is a personal one that an individual should make on their own. However, it is important that this is an informed decision.
Those considering creating a last will and testament should consult with an attorney to understand the intricacies and costs of creating a will, and obtain legal advice related to any state-specific rules pertaining to holographic wills.
In addition, an estate planning attorney can discuss other elements of an estate plan, including arranging for power of attorney, creating trusts, and naming a personal representative.
