Before we get into this specific type of will, let’s review some basics. First, what is a will? A will is a legal document that dictates how a person would like their assets (money, retirement funds, real estate, etc.) to be distributed. Once it’s written, it must be put through a formal validation process involving witness signatures, and often notarization. The will is just one element of an estate plan, as the entire plan is used to not only distribute finances but also to help someone in the event of incapacitation or other medical emergency.

While the vast majority of wills created are printed and signed in the presence of witnesses, some states allow for the use of a “holographic” will, which is another way of saying a will that was handwritten by the testator, or person who is creating this will for themselves. Holographic wills are the most seemingly convenient type of will. They don’t require witnesses or notarizing with a professional. All the testator needs to do is hand write and sign a will. While this option might seem ideal because it’s cheap and quick to formalize, issues can arise. We’ll go over how holographic wills came about, who can use them, and ultimately, why these wills are not the best option to use.

Why Holographic Wills?

Holographic wills were intended to be used in the case of an emergency or near-death scenario. A person might not have access to the formal process to create a regular will under such sudden circumstances. Similarly, those serving in the armed forces may also not have access to the formal will creation process, so they may turn to this alternative, especially if they find themselves deployed to a dangerous combat location. For this reason, some state laws have deemed holographic wills valid, though most prefer and favor regular wills.

When Can You Use Them?

We’ll go over this in more detail later, but to sum it up, holographic wills seem convenient but they can lead to problems. Since there are likely no witnesses nor a notary to ensure the will was in fact written by the testator, it’s easy for these wills to be contested in court. A family member may choose to contest it if they feel the assets distributed weren’t following the testator’s wishes, or if they think the will is entirely fake. If put through the rigors of probate court, this could prolong the time it takes for beneficiaries to claim their assets, eat up part of the assets in legal fees, or even be declared invalid so the will can’t be followed at all, leaving beneficiaries to have their share of the inheritance instead determined through the courts according to state law. Due to these potential complications, only some states allow these wills. New York allows them for those in the armed forces, and these wills’ validity expires a year after service members have access to the regular will process. In contrast, New Jersey allows these wills for anyone and doesn’t require a witness like other states do. Since acceptance varies by state, and other factors considered by that state’s law such as military status, you’ll want to research your own state’s law before considering this option.

Are There Issues with These Wills?

As touched on earlier, there are some important pitfalls to note regarding holographic wills. Since these wills involve less legal interaction from the start, complications that pose obstacles to executing the wills may occur more readily.

Just beginning the process by navigating state estate law alone is confusing. Trying to understand the legal jargon without a law background is not easy. Discovering what a state requires for holographic wills can land one in trouble, especially if requirements are misinterpreted. It would be disappointing – even devastating – to create a will, only to have loved ones find out that the will can’t be used because state law guidelines weren’t followed for met.

Another common pitfall when using holographic wills involves determining its validity. Since these wills are handwritten by testators and often not witnessed, proving validity is harder than for a regular will. The testator’s handwriting and signature must be confirmed as legitimate (not forged) by someone close to the testator who recognizes their handwriting. If no one can confirm this, an expert capable of determining its legitimacy through handwriting analysis must approve it. In addition, the testator’s mental state must also be proven. The signage of the will, in addition to when the testator wrote the will, must have been done while the testator was in a healthy mental state. Even if the testator was in a good mental state, there is still the question of their intention. Was this handwritten document just meant to be a first draft and subject to change? It’s possible that the testator may not have decided on all details of the will, such as naming all beneficiaries.

If all of these elements can’t be proven, the validity may be contested in court which prolongs the process before assets may be distributed. The entire time the will is held up in court may also cost money that would have otherwise gone to beneficiaries. Even worse, if contesting the validity is successful, a holographic will may be thrown out. The court will then have to go by its state’s intestacy rules (protocol when a person dies without a will).

Additionally, as with every will, the contents may pose another obstacle. Unique to these wills, the handwriting must be legible, or else it’s difficult to understand what a testator requests. Moreover, confusing legal terms like per stirpes and per capita may come into play regarding distribution, leaving the testator unsure of how to proceed.

Why Is it Better to Find Another Option?

A will is an important part of an estate plan. It dictates who you’d like your assets distributed to and how you’d like to distribute them. As a result, it’s important that this legal document is clear about your wishes and created correctly. It’s also important to note that a will is not the only element of an estate plan. Good plans will consist of other elements, such as power of attorney and an advance directive. Estate plans are more than just a will, they’re a way to guarantee that your wishes are met, whether it be familial, medical, or financial.

To best ensure that your desires are followed correctly with little to no legal complications, you should talk to a professional. An attorney can help you create a will that explicitly follows your wishes, thereby saving your surviving family members from the heartache of legal difficulties while dealing with the loss of a loved one at the same time. We make the process easy and painless with a single, reasonable flat fee. Call Rosenblum Law at 888-883-5529 for a free, initial consultation.