In the past, many people would write their will on a piece of paper and sign it, but that led to problems with individuals faking wills so a self made handwritten will has developed its own name, referred to as a holographic will or oligarchical will. A will that is handwritten and signed by the person making the will (otherwise known as the Testator) is a holographic will.
A holographic will includes the following traits:
- A holographic will is a handwritten will
- Typed wills are typically not considered holographic
- Standard wills and holographic wills have different witness requirements
- Not all states recognize holographic wills
Proving a holographic wills validity
Traditionally, a will must be signed by witnesses attesting to the validity of the testator’s signature and intent, but in many jurisdictions across the country are treated similarly to standard wills.
Minimum requirements for a will to be valid
In many states, holographic wills that have not been witnessed are treated equally to witnessed wills and need only to meet minimal requirements in order to be probated:
- There must be evidence that the testator actually created the will, which can be proved through the use of witnesses, handwriting experts, or other methods.
- The testator must have enough intellectual capacity to write the will, although there is a presumption that a testator had such capacity unless there is evidence to the contrary.
- The testator must be expressing a wish to direct the distribution of estate assets to beneficiaries.
A holographic will is different from a normal will
A holographic will is a handwritten will as opposed to a normal will which is typed and usually created by an estate planning attorney. Wills written by attorneys are witnessed and stamped by a notary. The distinction is important because some states do not allow holographic wills.
Some states do not allow holographic wills
Many states do not allow holographic wills. For instance, Florida does not allow holographic wills under any circumstances. These states do allow holographic wills.
- New Jersey
- North Carolina
- North Dakota
- South Dakota
- West Virginia
Using A Holographic Will
If you are an heir, beneficiary or executor to an estate that has a holographic will, you should hire a probate attorney to tell you if the will can be used or not. It is likely that if there is any substantial money in the estate, you will have to go through probate. If you are in probate and need money immediately, a financial tool that can help you is a probate advance, estate advance, or inheritance advance otherwise known as an estate loan, probate loan or inheritance loan.
Avoid creating a Will in your own handwriting
First of all, handwritten wills are not recognized by most states, and having such a will generally leads to litigation. Holographic wills generally are created in situations where the testator is on their death bed and thus open up issues where beneficiaries can argue about the mental capacity of the person who writes the will. Creating a handwritten will or holographic will in the testator’s handwriting many times leads to the testamentary intent not being carried out and going through probate.
Second, there can be a lot of ambiguity when you create your own last will and testament. You may not put your clear intentions in writing and will create litigation at the time of admitting your last will and testament. Proper drafting a Will takes art, covering all contingencies, and making sure you cover all the situations.
Third, interested parties may be able to make a case for mental capacity not being met without an attorney being able to vouch for the mind state of the testator at the time of creating the will. The testator’s hand writing also may be called into account and reproduced when your handwritten last will and testament are introduced to the probate court. Typically, we avoid this by executing a self-proving affidavit that is properly notarized.
Lastly, you may not list all your assets, or the assets you list are not subject to being probated. Similarly, you may run afoul of the Florida homestead law and invalidly devise your homestead. For these reasons, it is much easier to meet all of the legal requirements of a will, which includes a typed will signed by the testator with two witnesses (hopefully one of them being a law firm) who can verify the testamentary capacity thus making it a legally binding will.
Different Types Of Wills
A holographic will is different from other forms of wills because it is handwritten and thus, the burden of proof may not be met with a holographic will to prove its validity. A legally valid will under state laws usually has two witnesses and fully outlines the testator’s intent with detailed instructions and supports the will’s validity. Other types of wills include the following:
1. Simple Will
2. Testamentary Trust Will
3. Joint Will
4. Living Will« Back to Glossary Index