What can happen when someone dies without a will—but has left a hand written note expressing intentions for the distribution of assets? Read on to explore what happened in a recent case in Texas.
Understanding Holographic Wills
In some states, including Texas, holographic wills are permissible alternatives to traditional wills, which are normally developed under the guidance of lawyers. As explained by Investopedia:
A holographic will is a handwritten and testator-signed document….Some states do not recognize holographic wills. States that do permit holographic wills require the document meet specific requirements to be valid.
In most states, minimal requirements for accepting a holographic will include proof that it was in fact made by the testator (deceased person)—and that the testator had the mental capacity to do so. A holographic will must also contain the wishes for how the testator wanted to distribute assets to beneficiaries. Signature by the testator is also critically important. Investopedia notes:
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.
Signature Please: The Details Matter
Recently, the court of appeals in San Antonio Texas focused the spotlight on the necessity of clear and intentional sign-off by the testator on a holographic will. As JD Supra reports:
In the Estate of Hohmann, the decedent died without leaving an executed will, but his caretaker found a hand written document wherein the decedent stated his wishes for his property…. The decedent’s cousin filed an application to probate the hand written document as a written will, and an heir of the decedent filed an opposition. The trial court granted summary judgment for the opponent, and the applicant appealed.
Upon examination of the holographic will, the appellate court determined that it had not been signed by the deceased—and rejected the claim that the use of the phrase “R. Hohmann Estate” served as a signature. Importantly, the court’s summation of the decision included this point:
While the signature may be informal and its location is of secondary importance, it is still necessary that the maker intend that his name or mark constitute a signature, i.e., that it expresses approval of the instrument as his will. (No. 04-20-00237-CV, 2020 Tex. App. LEXIS 9216)
Worth Knowing: Decisions In Probate Court
When there is no will, probate courts use state laws of intestate succession to distribute assets to heirs. Generally, the court will appoint an administrator to administer the estate of someone who has died—and require procurement of an administrator bond, before the affairs of the estate can begin to be settled.
An administrator bond is a type of fiduciary bond that protects the interests of the estate and its heirs in accordance with state law. When a judge requires an administrator bond, it must be secured and filed promptly.
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