Is a Handwritten Will a Smart Idea?

A holographic will is a will handwritten by the testator (the maker of a will). Holographic wills are recognized in about half of the states in the United States.

Is a Handwritten Will a Smart Idea?Some states, recognize holographic wills under limited circumstances, such as Alaska, Arizona, Arkansas, California, Colorado, 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.

In some of these states, if a will was handwritten by its maker, the state will recognize the will provided it was executed with the state’s requirements for valid wills.  Problems occur when the will is typed then signed.  A typewritten will is not a holographic will and thus has other execution requirements.

Many states, require, among other things, that at least two witnesses attest and sign the will in the presence of each other, as well as in the presence of the maker.

Think Advisor’s May 20 article entitled “Relying on Holographic Wills Is a Terrible Idea” says that, while a holographic will could be valid in your state, there are many instances where attempts to comply with the state probate laws failed.

If the maker of a holographic will lives in a state that doesn’t accept holographic wills, the will isn’t valid.

In those cases, if there aren’t any valid prior wills, the testator’s property will be distributed to his or her heirs according to state intestacy law, rather than the intent of the testator.

This makes it problematic for someone who makes a will — handwritten or not. That is because the maker of the will intended for the assets to pass in a certain way, and perhaps not how the state’s laws say.

Some people are not too concerned with making a will. However, that may be a result of a person not having many assets, or the individual relying on will alternatives, like intestacy laws, joint bank accounts, payable or transfer on death accounts, and certain deeds, such as real property owned tenancy by entirety (property owned by a married couple).

Some states also have what is known as a lady bird deed, or an enhanced life estate deed. This document permits the owner of the real property to have control of the property, until he or she dies. The property is then transferred automatically to the person(s) named in the deed. It’s essentially a lady bird deed as being a pay-on-death account for real estate. California no longer has these types of deeds.

For specifics and how they might apply to your particular circumstances, talk to an experienced estate planning attorney.

One of the main goals of our law practice is to help families like your plan for safe, problem free, and successful transfer of assets to the next generation.  Call our office today to schedule a time for us to review your estate plan and identify the best strategies for you and your family to ensure your legacy of love and financial security.  Our office is located in Santa Ana, CA but we serve all of California including Irvine, Orange, Tustin, Newport Beach, and Anaheim.

For more information and articles on estate planning, probate, trust law, and business planning, please visit our website and subscribe to our monthly e-newsletter.

Reference: Think Advisor (May 20, 2021) “Relying on Holographic Wills Is a Terrible Idea”

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