Is a handwritten will legally valid?
Should I execute a handwritten will?
A holographic will is useful for individuals with a small estate and/or few heirs. It is also useful in emergency situations when a person is gravely ill and needs to execute a will quickly without the typical formalities such as signing in front of attesting witnesses.
If you own a significant amount of personal or real property I recommend executing a formal will (typed, signed, and witnessed) with the assistance of a probate attorney. If you can't afford a lawyer, you can use sites such as Legalzoom to execute a basic will for a small fee. However, be warned that if your will fails for any reason, your estate will pass to your heirs according to your state's intestacy laws. Dying without a will is more expensive than dying with a will, and may cause serious delays in the distribution of your estate. More importantly, it may result in an unfavorable distribution of your assets.
Under the law, a handwritten will is called a "holographic" will. Many states permit a testator (the person writing the instrument) to execute a handwritten will so long as certain elements are met. For example, most states which permit holographic wills require that the testator sign the will. The signature requirement is to ensure the testator had the present intent to make the written document his last will and testament.
Beyond the signature requirement, the other elements for executing a handwritten will varies from state-to-state. Some states require that the will be written "wholly in the testator's handwriting" while other states only require that the "material portions be in the testator's handwriting".
Holographic Will Requirements
Testator must have the present intent to make a will
Testator must have the capacity to understand the extent of his estate and know that he is making a will
Some states require a signature at the bottom of the will, others accept a signature made anywhere
In Testator's handwriting
Some states require the will to be entirely in the testator's handwriting, others only require the material portions
How do I execute a handwritten will?
The first step is to find out if your state permits holographic wills. This will require finding and searching your state's Probate Code. This may seem like a daunting task, but it is actually quite simple if you know where to look. The best site is FindLaw. It is a free site which allows you to browse state statutes using keywords. In this case, you would search the Probate Code for any statute that includes the word "holographic".
If you find a statue governing handwritten wills, you must be sure to comply with each and every requirement (ex. wholly in testator's handwriting, signed at the end, ect).
If you cannot find a relevant statute, chances are your state does not accept handwritten wills. If you are unsure about whether your state accepts handwritten wills, or you are unclear about the specific requirements, I recommend speaking with a probate attorney.
© 2014 Bahin Ameri
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