When it comes to estate planning, many of us try to take the easy route. For example, you may be thinking, “Why do I need a lawyer to draft a will for me when I can just write my own?”
While there are various types of software that can help you create a valid will or estate plan, simply grabbing a piece of paper and creating a will in your own handwriting is not the way to go about it. These are called holographic wills, and there are often questions about their validity. In fact, some states don’t accept them at all.
A holographic will is a handwritten document signed by the testator, or the person creating the will. While it is considered to be an alternative to a will produced by a lawyer, many states do not recognize holographic wills. In states that do permit holographic wills, there are specific requirements in place. For example, there must be:
- Proof that the testator wrote the will.
- Evidence that the testator had the mental capacity to write the will.
- The testator’s wish to disburse personal property to beneficiaries.
This may seem easy enough, but having these requirements does not automatically mean the court will consider the will to be valid. Holographic wills do not require notarization or witnesses, so proving the validity of the holographic will can be challenging in probate court.
The court, as well as family members, will have to determine if the handwriting in the will does, in fact, belong to the deceased. Handwriting experts may be brought in to compare the handwriting to other things the decedent has written. When the handwriting is illegible, this is when problems occur.
There are other things to consider when using a holographic will. Was the decedent of sound mind when they wrote it? Does the will actually contain the testator’s final wishes? The decedent may have forgotten to update it. These questions may be brought up in court.
Also, not all states recognize holographic wills. Florida considers holographic wills or oral (recorded) wills to be invalid. Maryland does recognize holographic wills, but they must comply with state law. This means that the testator must be of sound mind when drafting the will. Also, it must be signed by the testator and two witnesses.
In the District of Columbia, holographic wills are permitted but they are not recommended. That’s because holographic wills have to go through a more complex probate proceeding. This may include additional publication in newspapers as well as additional hearings.
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Holographic wills can be complicated to deal with. Some states don’t allow them at all, while others allow them only under certain circumstances.
Make sure your will is valid to avoid issues upon your death. The team at Francois Williams Legal LLC can help you create a comprehensive plan so you have peace of mind. Schedule a consultation today by calling us at (301) 358-0377 (Maryland) or (954) 372-2021 (Florida) or by filling out the online form.