Leaving behind proof of your last will and testament is critical to seeing it honored after your death. Any document claiming to your last will is sure to be met with skepticism if it was not properly witnessed and notarized – after all, a document like a will determines who gets what after death and maybe the lynchpin to the dissolution and distribution of a family fortune. It carries a lot of weight.
Yet circumstances may lead to certain limitations when it comes to drafting and officiating a testament before death. Soldiers, for example, may write up their wills in handwriting before dying in combat.
In other cases, you may find yourself at your deathbed with limited time and resources and wish to ensure that your last wishes regarding all you own are put to paper and honored after death. In times when there is no feasible way to draft up and create a notarized last will and testament, some people may resort to taking pen and paper to create their will before passing away. This is called a holographic will.
What is a Holographic Will?
A holographic will is a handwritten alternative to a typical will witnessed and notarized by a public notary. Handwritten wills are valid in California, but must be written by the testator, and signed by them before death. A handwritten will must not have been witnessed nor notarized to be valid. Not all states recognize handwritten wills.
A handwritten will is called a holographic will because a holograph refers to any document handwritten and signed by the author, not to be confused with holograms. Holographic wills are valid because the handwriting of the testator makes the document self-evident, provided it can be proven that it is the testator’s handwriting and signature through other supporting documents.
Proof that the testator was indeed the handwritten author of a holographic will is one of the only pieces of evidence needed to make a holographic will official, alongside evidence that the testator had the mental capacity to write and sign the will at the time. However, while holographic wills are valid in California, they certainly are never ideal. Holographic wills make for poor substitutes to a witnessed and notarized will because they are far harder to defend as authentic.
Problems can quickly arise if a holographic will isn’t legible, or if there is any reason to doubt the authenticity of the will (i.e., quirks in the handwriting that don’t quite match up, or a different signature). Because holographic wills are drafted without the presence of a lawyer, they may also be incomplete. A holographic will may not refer to every piece of property in the testator’s estate, or it may not be explicit enough when referring to beneficiaries and their respective portions of the estate.
Another issue with holographic wills is that they can be difficult to prove. Yes, if there are enough handwritten letters and other sources of evidence around to prove that the holographic will was written and signed by the testator before death, then at least the validity of the writing can be confirmed. But that still leaves the question of whether the testator was sound of mind. Without witnesses to testify the mental state of the testator at the time the will was created, it’s much harder to prove a sound mind. An incomplete or abbreviated holographic will may only cast further doubt on the topic.
One way a testator might be able to grant greater legitimacy to their holographic will is through in-depth explanations on why each given beneficiary was chosen for the portion of the estate they are meant to inherit. Recalling events, showing gratitude for actions in the past, being explicit and writing in detail can help prove that the testator was in possession of all their mental faculties.
When is a Holographic Will Valid in California?
The basic requirements for a holographic will to be valid include proof of the testator’s penmanship and signature, as well as proof of a sound mind (testamentary capacity). A holographic will must also be written in such a way that it is clear the author wishes for this document to serve as their will. The document must also feature the date on which it was signed.
If someone in the family has a problem with one or more provisions within the will, another caveat of holographic wills is that they may be easier to discredit or paint as illegitimate.
The more evidence exists to prove that a holographic will is valid and serves as the last will and testament of the testator, the better.
Other Types of Will
There are multiple different types of wills. Holographic wills refer to handwritten wills, but there are wills that stand on even shakier ground and are harder to argue validity for, such as nuncupative (verbal) wills.
Just like holographic wills, not every state accepts a nuncupative will. That is because it is notoriously difficult to prove a nuncupative will. Verbal wills are essentially hearsay, unless other impartial witnesses were there to prove that the testator did indeed wish for the things mentioned with their last words, and had the capacity to make such a testament. California does not recognize nuncupative wills.
Other wills are much more ironclad. A testamentary will is any last will and testament drafted, signed, witnessed, and notarized with a public notary. These are estate planning documents that can be created through a template or form online or with the help of a local estate planning professional.
Living wills, on the other hand, are documents that ascertain which healthcare procedures you would and would not permit if you become incapacitated because of an accident, illness, or as part of a medical procedure, and could no longer provide specific consent for your healthcare. These documents are also known as advance directives.
Joint wills refer to wills drafted for two people. Joint wills are usually created by married couples or life partners who have a long-term plan for how to distribute their estate between each other, and then their children. Joint wills become irrevocable after the first spouse’s death, meaning the surviving spouse cannot amend their joint will.
Pour-over wills are usually used in conjunction with other estate planning documents, in cases where trusts and beneficiary designations are leveraged to minimize a decedent’s probate and estate-related costs. In such cases, any possessions left over before death would be added to the pour-over will and transferred to a trust posthumously before probate begins.
Your estate plan should match your needs and circumstances. A holographic will can make things needlessly important when you pass away – and simple estates can easily be managed and successfully distributed among your loved ones with an equally simple will.
On the other hand, complex estates – with properties in multiple states or countries, for example – can become terrible headaches for surviving family members when left behind without an estate plan. Let us help you create the ideal estate plan for your situation.