It’s not that expensive to have an attorney draft a will, and it's the best way to ensure that someone's wishes are carried out, that the right people receive the right inheritances and the will maker's beneficiaries do not incur any unexpected expenses down the line. The decision to draft a will without legal assistance should be made after careful consideration.
Handwritten wills, known as holographic wills, are accepted in 26 states to varying degrees. There are risks associated with this type of will, however, and lawyers recommend that they be used only in emergency or temporary situations.
Which States Recognize Holographic Wills?
At the time of publication, 26 states will accept a will that is made in the handwriting of the person making the will. These states include: Alaska, Arizona, Arkansas, California, Colorado, Idaho, Kentucky, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, New Jersey, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming.
In other states, like New York, holographic wills are accepted only if a member of the Armed Forces makes them. These wills are valid for a limited period, typically one to three years after the will maker is discharged from military duties. The time limit is intended to encourage the will maker to replace the handwritten will with a conventional will at the earliest opportunity.
Requirements for a Holographic Will
Requirements vary from state to state so it's essential to check local rules. Generally though, the only requirements for a holographic will maker include:
- Using his own handwriting (no typing) to make the will.
- Providing his full name and address.
- Expressing the intent that the document be his will.
- Signing the will.
Note that it is not generally necessary to have a holographic will dated, witnessed or notarized. The lack of legal formality is what sets a holographic will apart from a conventional will and allows a will to be prepared at short notice. That said, it is a good idea for the will maker to date the will especially if he has previously prepared a will. This helps to identify the handwritten will as the most recent, and therefore the correct will, which supersedes all previous documents.
Who Should Write a Holographic Will?
If an individual has the time to prepare a conventional will, then she should do so. Holographic wills are intended to be used in emergencies, for example, when someone is engaged in active service or is in the hospital and needs to prepare a will quickly. If circumstances prevent someone from typing out a will and having their signature witnessed by at least two independent witnesses, then this is the only time they should consider making a holographic will.
Also, if there's a possibility the will might be contested, if the will maker has minor children, if he has been married before, if he has children from a previous relationship, or if the estate is large enough to benefit from tax planning, then the will maker definitely should obtain legal assistance in writing the will. The same holds true if the will maker owns a business, has significant property holdings or owns foreign assets. Otherwise, there could be significant tax consequences at death.
What to Include in a Holographic Will
If an individual chooses to hand write their own will, they need to include the certain provisions but can modify them to suit their particular needs. These provisions include:
- Identifying the will maker (testator) by writing his full name, address, county and state. It should be specified that the testator is of sound mind and capable of determining his own affairs.
- Identifying the holographic will as the testator's last will and testament, revoking all previous wills.
- Naming an executor – the person who will carry out the testator's last wishes according to the instructions in the will.
- Listing the beneficiaries and specifying the gift that each of them will receive.
- Naming the beneficiary who will get the residue of the estate – everything that’s left over after the testator has made specific gifts. For most people, this person will be their spouse, partner or child/children.
- Ensuring that the holographic will is legible and organized and then signing it at the bottom of the final page.
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