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What is a Holographic or Handwritten Will?

Estate Planners | Monday, May 30th, 2011

The holographic or handwritten will is a “step above” having no will at all. This type of will is considered valid in many states; in fact, in almost thirty states, even a holographic or handwritten will that has not been witnessed is valid. The holographic will must be prepared in the handwriting of the testator. Even in states that recognize the validity of a handwritten will, the laws are very strict and particular. For instance, in California, the testator must write the entire will and also sign it. In some states, no signature is required, while in others, the handwritten will must be signed by witnesses. In states where a handwritten will is not accepted by the courts, the will is sometimes declared valid under the Foreign Wills Act provided that the will was written in a jurisdiction that would accept it as valid. In nearly all states where a holographic will is accepted by the court to be the trust last will and testament of the testator, the following basic requirements must be met:

* The testator must, within the holographic will, express his or her wishes and name beneficiaries for the estate.

* The testator must possess the mental capacity to author his or her own will. Mental capacity is assumed in most states unless someone presents evidence to contradict this assumption. The testator should also be free from undue influence in writing the will, which is, again, assumed, unless evidence is presented to suggest such.

* There must be evidence of some sort that the testator in fact created the will; this is usually proven by the testimony of witnesses to the document’s creation, via the employment of handwriting experts, or other means.

More often than not, the holographic will is created due to an emergency, and for this reason, this type of will is sometimes recognized as valid even in states where the will is not legally binding. A sudden illness or injury can often result in a testator writing their own will quickly.

Drawbacks of Holographic or Handwritten Wills

There are obvious drawbacks to the holographic or handwritten will. Obviously, this type of will leaves the door wide open when it comes to would-be challenges to the will and its provisions. Unhappy beneficiaries may be concerned about the validity of the will and thus cause the entire estate to be held up for a long period of time in probate court, where there is also the possibility that the testator’s true intentions when writing the will may be not be carried out if the will is deemed invalid. Further, if the will contains language that is not recognized by the state in which it is drafted, the will can be deemed to be invalid and the testator would then have died intestate, or without a will. Thus, it is always optimal to properly prepare for the “unknowns” in life by talking with an estate planner who can draft a legal will that is recognized in the state where you live.

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