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:
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.
The handwriting must be legible and the words as clear as possible.
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.
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.