Serious, sudden illness. Heading into danger, perhaps a military operation. Life threatening natural disaster. Historically, these kinds of grave situations have prompted the spontaneous writing, by hand, of a will. Known as holographic wills, plans for assets that are written out by hand are still accepted upon death in some states, though they can lead to confusion. Read on to understand holographic wills, the challenges associated with creating one, and practical pointers for putting stronger estate plans in place while time is on our side.
Holographic Wills Explained
People don’t typically sit down at a lawyer’s office to create a holographic will; they create one because they are experiencing a sudden and immediate need for a will in the face of scarce time and resources. A holographic will may become a last resort in circumstances of imminent peril or unforeseen danger, such as:
- Military Service: A soldier headed into a danger zone, writing their last wishes on a scrap of paper.
- Medical Emergencies: A person about to undergo an emergency procedure who quickly drafts a note from a hospital bed.
- Remote Travel: An explorer or traveler who is isolated and facing a life-threatening situation.
- Sudden Disasters: Someone caught in a natural disaster or other calamity.
Though challenges with holographic wills can arise during the probate process, holographic wills can serve as a legal lifeline, providing a mechanism for an individual to swiftly formalize their final wishes when they have no access to the formalities of traditional legal resources. As Investopedia sums up:
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…..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.
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 make the decisions reflected in it. At Legalzoom, Aishwarya Khan Bhaduri offers these further points on the distinguishing qualities of holographic wills:
- As per the Uniform Probate Code (Unif. Prob. Code § 2-502[b]), holographic wills are handwritten wills that have not been witnessed or notarized….
- …The term comes from the Greek word “holographos,” meaning “written entirely by the same hand….”
- If a handwritten will meets all the legal requirements for a typed will (such as being witnessed or notarized), then, depending on state law, it typically fulfills the requirements of a valid will and is not considered a holographic will.
- A holographic will does not need to be typed, formally formatted, or witnessed; its validity depends primarily on whether the writing and signature can be verified as those of the testator.…
- …A will is considered holographic only if it is entirely written by the testator, with no input from others. This sets it apart from typed or oral wills, which may involve help from attorneys or witnesses.
If writing a holographic will sounds like a clever hack for more thorough estate planning, consider that holographic wills frequently result in confusion that can only be resolved in courts, which takes time and money, while likely ensnaring beneficiaries in stress and conflict. In the event a holographic will becomes a last resort, keep in mind that though witnesses or notarization are not “required,” taking such steps “can help reduce the risk of disputes,” down the road, providing courts with additional proof of authenticity. Keep in mind too that a handwritten will does not necessarily override other documents: “If a handwritten document contradicts a previously signed, formal will, the court will typically determine validity based on state law and intent. In states that accept formally executed wills, a holographic version may not override other legally binding estate documents unless clearly stated and lawfully executed.” Generally, in order for states to consider a holographic will to be valid, it must:
- Be written wholly in the testator’s (the person making the will) handwriting, or the material portions must be in the testator’s handwriting (depending upon the state).
- Indicate the testator’s intent to make a will (as opposed to, for instance, just some notes being used in anticipation of drafting a will).
- Clearly describe the property and assets to be distributed, and identify the beneficiaries for each.
- Demonstrate mental capacity and a sound mind to create a will. The testator needs to show an understanding of what the document means and its effects.
- Be signed by the testator (some states also require that the will be dated).
Good To Know: Complete Estate Plan?
Loved ones can spare each other from the added layers of grief and stress that come with death by creating complete estate plans, and keeping them updated. Elder law attorney Patrick Simasko advises that a complete estate plan typically includes:
- Last will and testament. You specify what happens to your property and who raises your children.
- Living will. With this document, also known as a health care directive, you designate someone to make your health care wishes known if you can’t communicate them.
- Health care power of attorney. You appoint someone to make health care decisions for you if you’re incapacitated.
- Financial power of attorney. You designate someone to make financial decisions if you can’t do so.
- Living trust. You reserve your assets for your loved ones to avoid delays and expenses with the court, in probate.
Another important aspect of estate planning is the designation of individuals trusted to carry out the plans. For example, when a will is written, you will name the executor who will ultimately administer it. In some states an executor is alternatively referred to as the personal representative. When choosing your representative, it’s important to be thoughtful and make sure the individual understands the responsibilities and has the time and ability to carry them out. Though it is typical to name a close relation or friend, a professional can also be chosen. Regardless of who you select, it’s best to arm the executor with as much detail as possible while time is on your side:
To avoid any unnecessary complications in the settling of your affairs, take care to avoid ambiguous or unclear language in your will…..The executor named in a will is responsible for carrying out the testator’s final wishes. The executor is a liaison between the probate estate and the probate court, as well as between the probate estate and the beneficiaries. Their duties include locating and valuing assets of the estate, paying debts, and distributing assets to beneficiaries in accordance with instructions in the will.
Given the significant obligations of executors, most states require “bonds to ensure their trustworthy behavior in their roles. These bonds guarantee that all the estate debts will be satisfied and that the remaining assets will be properly distributed to the appropriate heirs.” More information about executor bonds, as well as a user friendly online service to obtain them quickly is available at Colonial Surety Company:
Executor Bonds, AKA an Estate Bond, Here
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