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HOLOGRAPHIC WILLS:
THE BASICS
Introduction:
When one writes
one’s own Will in one’s own hand, one creates a “holographic will” and
they can be entirely enforceable in California. This article shall
briefly recite the requirements to create a holographic Will and some of
the dangers inherent in utilizing them.
The Basics Issue-Is it a
Will?:
The courts are
filled with cases over the years brought by litigants trying to prove
that various writings are actually Wills and not simply general
expressions of intent to make a later Will that is binding. Typically, a
letter or memo from the now deceased person will discuss various goals
or thoughts the person is having as to who gets what assets and one or
the other family members will claim that the letter is actually a Will
which indicates testamentary intent. See our article on
Wills and Trusts.
One famous example was a deceased uncle who left his philosophical
thoughts as to family and property carved onto a wooden plank that had
been sitting next to his rocking chair. Another famous example was
actually written on a water melon by a deceased relative who apparently
had a wicked sense of humor.
But by far the most
typical fight is found when letters are sent to relatives discussing
what a person wants, often complicated by the fact that numerous letters
are sent to different person which contradict each other. At times, the
letter indicates an intent but also states that the now deceased
relative plans to write a “formal Will” but, meanwhile, the relative
wants X to know that these are what he or she is thinking of doing. The
courts then spend years (and the estate spends tens if not hundreds of
thousands of dollars) trying to determine if the document is a Will or
merely an intention to make a later Will. Families are torn apart by
dispute and usually never recover.
Ideally, the person
wishing to avoid the above will obtain good legal advice and have a
formal Will created which should avoid the above danger and revokes all
prior Wills and negate any “letters” or equivalent writings that can
cause confusion.
However, for those
who, for whatever reason, wish to write their own, the following rules
should apply.
The Basic Requirements:
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The document should be completely in the handwriting
of the person making the Will. Even preprinted logos or letterheads
can be a problem. No one should write anything else or fill in any
blanks on the Will.
-
The Will must be dated and signed.
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The handwriting must be legible and the words as
clear as possible.
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The Will must state clearly what assets are being
left to whom. Ideally, the document should state that this is his or
her last Will and Testament.
-
While the handwritten Will need not be notarized or
witnessed, it is a good idea to have two witnesses and a notary if
at all possible.
The Advantages and
Disadvantages:
The advantage is
simple. It costs nothing in legal fees and is quickly done.
The disadvantages
are many. First, any qualified lawyer will have forms that avoid the
dozens of problems that normally occur in an estate (e.g. who are the
executors? What happens if an executor cannot serve? What happens if
there is a
Will Contest? How
are taxes to be paid? What happens if the beneficiary is dead or
bankrupt? What happens if creditors of the beneficiary make a claim on
the assets that are going to that beneficiary?) The well written Will
can address all those issues and more.
.
Further, tax
planning, and savings of the cost of probate, which can be a major
aspect of any intelligent estate plan, can seldom be achieved without
utilizing numerous other structures (e.g. Trusts, joint tenancy, etc.)
that are normally not even considered when writing a holographic will.
Property held in
joint tenancy or as part of a partnership or corporation
may be subject to rules and laws that make including it in a Will
pointless or even a breach of an agreement. Property held abroad or in
another State may also pose a problem involving taxes and accounting
which intelligent estate planning can avoid.
If there is any
chance a child may inherit (e.g. your prime beneficiary, who is an
adult, dies before you so his or her child inherits) then the best way
to protect that child’s future inheritance would be a Trust. Without
such a Trust, the money is simply given to the guardian of that child
who may not be the best person to protect that asset.
The list goes on and
on…but the point is that planning for one’s death, however unpleasant,
normally requires the expertise and plethora of structures that only
professional help can provide. Holographic Wills should be done for
emergency purposes only…until a fully drafted estate plan can be
implemented.
For examples of what
happens if one simply tries to write one’s own, see our Articles Page
Lessons from the
Combat Zone-Lawyer’s Stories With a Moral.
Conclusion:
Holographic Wills
are perfectly legal. They are, however, quite questionable to use if one
really wants to anticipate problems and ensure the tax and cost
efficient transfer of assets to the next generation.
An old friend who
was a client consistently refused to come in for a formal Will despite
my repeated urgings. He was an intelligent and driven business man who
just never had time and ended up scribbling what he hoped was a good
Will on the back of an envelop during a trek in Nepal after he fell and
broke his leg and was worried about what might happen. He did recover
and came in for a formal Will perhaps six months later and we went
through his handwritten document and discussed how it would have ended up
costing his estate an extra fifty thousand dollars by failing to have
the right structure. He executed a Trust a month later.
One elderly client
who was in intensive pain from cancer once told this writer that her
last important duty to her family was avoiding disputes concerning her
property once she died. “It is up to me. No one else. And if I do it
right, no one will even think about the problems that could arise.”
She was right.
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