Looking for an affordable way to have a will? Although tempting, you may want to read the full story about why its quite risky to have a handwritten or holographic will.
In this article we discuss a hand written Holographic Will and whether or not it may be the best for you. Are handwritten wills legal? We’ll also share some major risks of having this type of hand written will and lastly we’ll share a short story with you about a man who in 1948 who used a Holographic Will to leave his wife everything.
If you’re trying to save yourself some money than in your research you may of heard or want to try your hand at a Holographic Will. We must warn you though, saving a little money is not certainty and when it comes to your loved ones and your assets, our law firm would not advise our clients to take this type of risk.
With all of that being said, the Wesbrooks Law Firm offers FREE consultations and affordable payment options to ensure you have a legal estate plan, last will and testament or trust prepared properly. Go ahead, give us a call at (602) 262-4357 and see how we can help you and ensure your family gets what you wanted to give them.
So, what is a Holographic Will?
A Holographic Will is a written will that is hand written in its entirety. In some states, whether you write it on a piece of paper or a wall in your house, the person that is writing out their will may actually have a valid will. There are however several catches to using this type of will such as you cannot start writing your Holographic Will on your wall and then transfer some of the information over to a piece of paper. Which basically means one will, one area and it must be hand written.
In Arizona, “A will that does not comply with section 14-2502 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator”. (Section 14-2503) – http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/14/02503.htm&Title=14&DocType=ARS
In Texas, A Holographic Will is a valid will – “A will wholly in the handwriting of the testator that is not self-proved as provided by this title may be proved by two witnesses to the testator’s handwriting. The evidence may be by: (1) sworn testimony or affidavit taken in open court; or (2) If the witnesses are nonresidents of the county or are residents who are unable to attend court, written or oral deposition taken in the same manner and under the same rules as depositions are taken in other civil actions.” (Texas Probate Code Section 84 (c) .) – http://www.tlc.state.tx.us/legal/estatescode/Title2/HTML/81c479(1).HTML
Are you scratching your head yet? Actually, that’s perfectly understandable. If you haven’t been thinking about the risks yet, let us explain to you a few reasons why you may want to have a will or trust professionally drafted by an attorney rather than the holographic will:
- You will have to prove the hand writing is the person who created it and upon the death of the testator a handwriting expert may be called in to assist in this verification.
- You must be in a state that allows a Holographic Will
- States that do allow a Holographic Wills are; Alaska, Arizona, Arkansas, California, Colorado, Hawaii, Idaho, Kentucky, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, New Jersey, North Dakota, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wyoming
- North Carolina is another state that does allow Holographic Wills, but there is a catch. The will must have been found after the testator’s death, among their valuables, in a safe deposit box, or with a person where it was intended to be kept for safe keeping. Testimony is then required to admit the will into probate to prove the above listed requirements.
- Specific laws can vary from state to state.
- No need for witnesses, which makes a Holographic Will much harder to verify.
- Are you current? In all states you MUST be of sound mind to create a will. If you’ve created or even amended your Holographic Will, but never dated it, it may be virtually impossible for loved ones to prove the person writing the will were of sound mind when it was created or amended.
- Assets over $75,000? Forget about it. No, really. Forget about it. If you have assets that are over the amount that is needed to possibly skip the probate process, your loved ones may be in it for the long haul. What we mean by that is a long haul in probate court litigating & proving whatever you have that you’re the real heir. If you have assets over $75K you should really consider a living trust or revocable trust. That way, your assets are under the umbrella of your trust.
- Imagine this, there you are… going through probate court with a will from your beloved husband, wife, or grandparent. Since they didn’t have a will or trust prepared professionally you’re grasping on a piece of wall that’s been carved out with the words “I leave my assets to [fill in your name here]”. You reluctantly walk into the probate court to try to get what is “rightfully yours”, then you’re told that your loved one had over $75K in assets. Is that a risk you, your loved ones or your successors want to take? How confident are you that your loved ones will not just give up and relinquish that property you had near the mountains, or the ’66 Ford Mustang you’ve had since you were young. We’ve heard stories of what people have given up to just to rid themselves of the issues, whatever they may be.
- Contested? Imagine that you’ve passed away, you left knowing your family is well taken care of and they won’t “want for anything”. Then, out of the blue, your Holographic Will is contested by a family member who was not listed in your will. Under direct scrutiny the will is found as not legal. The court has thrown out your will and instead utilizes the “Intestacy Law” in which your assets are shared based on a prioritized relationship to your next of kin. This may be completely against what your true wishes were.
What is said to be the shortest Holographic Will ever? A man on his deathbed in Czech Republic wrote “Vse Zene” or “all to wife” prior to his passing. Although this story is a fantastic one, the websites that we found cited The Guinness Book of World Records, which after extensive research we did not find any records of this will being “the shortest will” ever. So, although interesting… if we were the myth busters, we would probably “debunk” this one.
What is an example of a real life, proven story of a Holographic Will?
Here is a great example that is still on display at the University of Saskatchewan College of Law in Saskatchewan, Canada. In 1948 a man by the name of Cecil George Harris begin to work in his fields near the town called Rosetown, Canada (Central Canada 5 hours East of Calgary). He let his wife and children know that he would be working late until about 10:00 PM on this night. After about an hour working in the fields, Harris needed to make an adjustment to his tractor. While he was working on the tractor, it went into reverse.
Unfortunately when the tractor went in reverse it had trapped Harris between it and another piece of farming equipment. When this happened it pinned his leg under the wheel of the tractor. It wasn’t until around 10:30 PM when he was found by his wife, taken to the hospital and then later died. Throughout this whole fiasco, and him conscious on his ride to the hospital, he never mentioned what he had etched into the fender of his tractor with his trusty pocketknife. Actually, it wasn’t until days later when neighbors began going through the accident that they noticed something peculiar on the fender of that tractor. In the fender were the words “In case I die in this mess, I leave all to the wife. Cecil Geo Harris”.
The fender was then removed from the tractor and deemed by the courts in Canada as to be a valid Holographic Will.
The full story of Mr. Harris can be found here: http://words.usask.ca/archived_ocn/09-jan-23/see_what_we_found.php
From all of this information that we’ve provided you today, you can probably just assume that preplanning has its advantages and that a holographic will is probably not the best choice. What it all boils down to is proper planning and planning ahead for that unfortunate rainy day. Having a professionally drafted will or trust is a much stronger way to prove your loved ones intentions upon their passing than writing anything down on a wall or tractor fender for instance. If you are considering having a will or trust drafted or just have questions, give us a call at (602) 262-4357 or contact us today through our website. We would be more than happy to speak to you and you have nothing to lose because we offer FREE consultations. Forget about the holographic will, and forget about going anywhere else, contact the Wesbrooks Law Firm today!
For more information about your state and whether or not it accepts a Holographic Will visit: http://www.lawchek.com/Library1/_books/probate/qanda/holographic.htm