What Is a Holographic Will?
A holographic will is handwritten and testator-signed document and is an alternative to a will produced by a lawyer. Some states do not recognize holographic wills. States that do permit holographic wills require the document meet specific requirements to be valid. The minimal requirements for most states are proof that the testator wrote the will, evidence that the testator had the mental capacity to write the will, and the will must contain the testator's wish to disburse personal property to beneficiaries.
- Holographic wills can be alternatives to wills that lawyers create.
- Holographic wills do not require notarization or witnesses.
- This type of will can lead to problems in probate court.
How a Holographic Will Works
Holographic wills do not need to be witnessed or notarized, which can lead to some issues during will 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.
Holographic wills are not accepted in all states and are subject to each states' laws.
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.
Today, there are a variety of software, books, and websites with detailed instructions on how to create and print a valid will and avoid some probate court problems. If a will is printed as opposed to being handwritten, it requires the witness of at least two people.
Where Are Holographic Wills Accepted?
It's important to note that state probate law ultimately decides the treatment of all wills within its borders. Some states will accept holographic wills to varying degrees. These states include; 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 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 Hawaii, Louisiana, South Carolina, Oregon, and Washington.
In New York and Maryland, holographic wills are only recognized if they are made by a member of the Armed Forces. In Maryland, these wills remain valid only for one year after the testator leaves the Armed Forces unless he or she is no longer of sound mind under the law at that time. In New York, such a will is valid for one year after the testator is discharged from the Armed Forces, or for one year after he or she regains a testamentary capacity, whichever happens first.