Your will is an important part of your financial plan. No one wants to think about their own death, but having a will ensures that your assets go where you want them to go.
Usually, you’d visit an attorney who specializes in wills so they can write it exactly the way you’d like it. However, sometimes a person realizes they don’t have a will, but they know their life is ending. They want to make their wishes known, and they may have no choice but to write a holographic will. But how does a holographic will hold up in court?
Why you need a will
Having a will ensures that the executor distributes your assets according to your wishes. It also makes sure that your potential heirs aren’t fighting in court about who should get what. Not having a will costs your heirs money, too, as the assets in your estate will be reduced because of paying an attorney and costly court fees.
What is a holographic will?
Typically, after discussing their desires with an attorney, the attorney draw up a will. It is then signed by the testator (the person who the will is for) and two witnesses, and maybe even notarized. The attorney takes pains to ensure they use proper language so that the will is legal and completed according to the testator’s wishes.
A holographic will is one you write yourself. Each state has its own rules regarding how much of the will needs to be handwritten. Some states require that the entire will must be written by hand, while some require that only the material provisions (i.e., the way you want your assets distributed) be written by hand.
And instead of being signed by multiple people to validate the will, a holographic will is only signed by the testator.
Reasons you might use a holographic will
There are a few reasons you might need a holographic will. For example, if you’re a soldier on a battlefield, a passenger in a plane that that is about to crash, or lost in the wilderness, these are all times where you may believe you won’t live much longer. Sometimes you may have no choice but to execute a holographic will, and whether it is going to hold up in court is the last thing on your mind.
Not every state recognizes holographic wills
However, only certain states recognize holographic wills. Each state has unique requirements regarding holographic wills. Alaska, Arizona, Arkansas, California, Colorado, Hawaii, 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 all recognize holographic wills.
A few states won’t recognize holographic wills unless they are made in a state which allows holographic wills. These states are Alabama, Connecticut, Delaware, Iowa, Minnesota, New Mexico, Rhode Island, South Carolina, and Washington. Holographic wills can be admitted in these states under a foreign wills clause.
Finally, there are a handful of states that will admit holographic wills if the circumstances regarding the creation of the will were unusual. These states are Maryland, New York, and Rhode Island.
Requirements of a holographic will
Since there are no witnesses to a holographic will, they are examined more closely by the court. Again, each state has its own rules, but usually, there are a few requirements that must be met.
- The will must state that it is a will (as opposed to just notes for drafting a future will)
- In some states, it must be dated
- Name the executor of the estate
- Explicitly leave property to one or more persons
- Have a signature at the end
If any of these parts are missing, you’ll have difficulty getting the will accepted by the court.
Additional proof for acceptance of a holographic will in court
The executor also has the daunting task of convincing the court that this is the most recent will and should supersede any other competing wills. Since there are no witnesses to the signing of the will, they must prove that the testator was of sound mind when he or she wrote the will. Finally, either by using handwriting experts or people familiar with the testator’s handwriting, the executor needs to prove to the court that the will is in the testator’s own handwriting.
Holographic wills can hold up in court, but the costs of getting the will through probate may be higher than anticipated. For the best chance of your will holding up in court, work with an attorney and have the document properly signed and witnessed.