Not everyone has a computer or a tablet to write their own will, particularly the elderly who may be reluctant to take on the challenge of new gadgets. If you want to write your will by hand instead, California Probate Code Section 6111 says it's perfectly OK, but you must follow a few rules and handwritten wills have a few drawbacks.
A Fancy Name for a Simple Document
A handwritten will is referred to as holographic in legal terms, but there’s more to it than just the handwriting. Technically, a holographic will is any that doesn’t meet the requirements of another California statute, Probate Code Section 6110. This section specifies what you must do to make your will valid, and Section 6111 lists the exceptions to these rules. Even you fill in the blanks on a will form purchased from an office supply store, it still may be considered holographic if it doesn’t meet other criteria in Section 6110. The important thing is that your signature and the will’s material provisions -- essential information such as your name, address and who you’re leaving your property to -- are in your handwriting. This would be the case if you filled in the blanks on a purchased will form.
Signatures and Witness Requirements
Holographic wills don’t have to meet the usual rules for witnesses -- two are normally required in California. The Law Office of Mitchell A. Port goes one step further and specifically advises against having your holographic will witnessed or notarized, because this might just muddy the waters and confuse the issue. You do have to sign the will, even if the entire document is written in your hand.
Although it’s not a requirement specifically set out in the state code, it’s a good idea to clearly date your will, particularly if this isn’t the first one you’ve drawn up. Unless your holographic will bears a date, the court will honor an earlier, dated will instead if its provisions conflict with the terms in your holographic will. Without a date, the court has no way of being certain when you wrote the holographic will. You might well have done it before the dated will, in which case the dated will is the most recent and is the one the court will accept for probate.
State that what you’re writing is, in fact, your will, that it takes precedence over any other wills you wrote before, that you’re of sound mind, and that no one coerced or pressured you into its terms. Ideally, you should write it on a blank piece of paper, not your stationary that might bear a letterhead.
California loosened some of its probate laws in 2009. You can now pretty much scribble some intentions for your estate on an index card and the court can accept that as your will if someone shows by clear and convincing evidence that you intended it to be. This might not be a good thing if you’re in the habit of jotting down your thoughts regarding how you want your estate settled but you haven’t quite made a decision yet. An heir might find your notes and submit them to the court as your will. Mistakes like this can’t happen if you have one professionally drawn up and it’s clearly dated, signed by you, and signed by two witnesses. At the very least, tear up any notes you write if you decide they don't accurately reflect your wishes.
You also run the risk of making mistakes in the language or terms of your will that can invalidate it if you try to write it yourself. Unless you have knowledge of the intricacies of estate law, writing your own will can be risky, whether you do it on a computer or by hand.