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When people think about creating a will, they often envision a formal event involving the testator, a lawyer, witnesses, and maybe a notary. However, a handwritten will without witness signatures can be a valid will under some circumstances.
A last will and testament, commonly called a will, is an important estate planning document. If you are making a will, you should be careful to create a valid will.
A will can state who will be the guardian of your children and who will receive your money and property after you die. After you pass, a court will review your will for validity through a judicial process called probate.
If a will is invalid, it cannot go through the probate process. Dying without a valid will is known as intestacy. If you do not have a valid will, the probate court will follow your state's intestacy laws to determine who receives your property.
A will usually requires the signature of two witnesses to make it a legally valid document. This witness requirement is the same for handwritten wills and typed wills.
In many states, a will does not need to meet the witness requirements if it is handwritten by the testator (the person creating the will). A handwritten will that is not signed by witnesses is known as a holographic will.
One justification for allowing a holographic will is that the testator's own handwriting gives the will authenticity. Holographic wills also allow someone facing imminent death to draft a will quickly without finding witnesses or a lawyer.
Even if a holographic will is legal in your state, you should only use one if your life is on the line and you do not have time to find witnesses or consult with an estate planning attorney. Otherwise, you should have a typed will with the number of witnesses required by your state's law. Considering the importance of a will, it is wise to seek legal advice before writing a will.
Laws vary from state to state, so looking up your state's statutes on wills is essential to ensure that your handwritten will is valid.
A handwritten will that meets a state's witness requirements is not a holographic will. State laws usually require that a will is “in writing" but do not specify that they need to be typed. In most states, a handwritten will that meets witness requirements is admissible to probate. However, typing a will is preferred because it avoids forcing a judge to interpret the testator's handwriting.
A signed handwritten document that describes what should happen to property after your death is not necessarily a valid holographic will. States that accept holographic wills have different legal requirements.
Some states require a holographic will to be entirely in the testator's handwriting. Other states allow a holographic will to be partially typed if important provisions, such as who receives your property or who will be guardian of your children, are in the testator's handwriting.
Other common requirements for a valid holographic will are:
States may have other requirements. For example, North Carolina law requires that a holographic will must be found “among the testator's valuable papers or effects" or in a place where the testator put it for safekeeping.
These requirements are meant to ensure that the testator intended the document to be a last will and testament and not an outline or draft of a will.
Making a holographic will can create unintended complications. Some probate judges will hesitate to recognize a handwritten will because it is difficult to verify the testator's handwriting. The judge can listen to witnesses who knew the testator's handwriting, but any disagreement or doubt will require the use of handwriting experts.
The requirement that wills have witness signatures exists to help probate courts. A holographic will is not signed by witnesses who can attest to other requirements for a valid will, such as if the testator was of sound mind.
Usually, if a person contesting a will claims the testator did not intend for a document to be a will or did not have the mental capacity to make a will, a probate court can ask for the testimony of the witnesses who watched the testator sign the will. With a holographic will, a court will have a harder time deciding these issues because no witnesses will be able to confirm the testator's mental state or intent.
Creating a handwritten will may seem to simplify the process, but it can make things more difficult when you are dealing with many assets. Trying to make changes to a handwritten will (by crossing things out, for example) can also create confusion and lead to drawn-out court battles, long after the testator has passed.
One reason for creating a will and having an estate plan is to take care of family members. A holographic will can create doubt, confusion, and stress for your loved ones. It can make them have to wait longer before they can claim their inheritance. At worst, a holographic will can cause fighting among your loved ones.
When putting together a will on your own, handwritten or not, there are some ways to make sure it will hold up in court. It is often wise to consult an experienced estate planning lawyer who can look it over, especially if there are any complicated bequests, or a great deal of property is at stake.
Bottom line: A handwritten will can raise many legal questions, but they can be valid, depending on the circumstances. To learn more about wills, check out FindLaw's free Guide to Writing a Will and click on the links below.