What is a Holographic Will?
When it comes to wills, many people have only heard one of two very short and shallow descriptions: you either need a lawyer to prepare a will, or you need a living trust to avoid probate. Unfortunately, each of these statements is only partially correct (if at all), and can even be extremely misleading. However, one thing is for certain; there are many types of wills in California, and knowing about them may save you time, money, and a substantial amount of headache.
So what is a holographic will you ask? First of all, a "will" of any kind is only required to be in writing. This is why there is such a wide variety of wills (such as oral, verbal, video, and so forth). Holographic means the entire will must be in its maker’s handwriting. Therefore, it is a type of handwritten will. It is not required that "will" or "executor" be written on the document since it may be clear by its contents that it is intended to be a will. Of course , in today’s high tech society, someone may try to type out a will on their computer but simply signs their own name in cursive (thinking they completed a holographic will). Even without the signature at the end, it would still be considered a holographic will if the whole document was in the maker’s own handwriting. This is because a holographic will can be created at any time, even if the maker never had the intention of creating a will!
In California, a holographic will is considered just as valid as any other type of will. Just like any other will, it must be dated, have testamentary intent, and signed by the maker. California Probate Code 6111.5 gives the Judge some leeway in regards to the "formal aspects of a will," and says the Court may find that a holographic will is valid as long as the Judge is convinced of the maker’s testamentary intent. In addition to being a common type of will, a holographic will has many more advantages, such as:
Are Holographic Wills Legal in California?
In order for the holographic will to be legally binding, the testator must be of sound mind, and the document must comply with other legal requirements (as mentioned above). If this is the case, then the holographic will is valid and enforceable in a California court. In situations where the validity of the document is being questioned (e.g. the will is being contested), the court will determine whether the signature on the document is genuinely that of the testator, as well as whether the document was truly written by the testator. When these essential factors can be shown, the holographic will is upheld as valid.
California does not have a specific statute detailing the legal requirements for a holographic will, but the most relevant statute is found in Probate Code section 6111.5, which applies to the execution of holographic and non-holographic wills. According to this section, the testamentary trust law of California accepts and recognizes the validity of holographic wills as long as the will is signed by the testator and the material provisions of the will are in the handwriting of the testator.
Criteria for a Valid Holographic Will in California
While California Probate Code Section § 6111.3 does not define the term "holographic," the requirements for this type of will have been outlined by California courts. To be considered a valid holographic will under California law, all three following conditions must exist:
- The will must be in the handwriting of the testator.
- The signature of the testator must be written by the testator.
- The material provisions of the will must be in the handwriting of the testator.
Assuming all of these conditions are met, a handwritten, signed will will be considered a valid will. However, if the condition of signature or the conditions of material provisions are not met, then the will must be proven and admitted to Probate Court with the issuance of an Order Propounding Holographic Will.
Although California law requires a testator’s signature on a holographic will, courts have the authority to dispense with a signature under certain circumstances. For instance, courts have held that if the most material portions of a will are in the testator’s handwriting, the courts have ruled that they can consider the document as a valid execution of a will even if there is no signature present.
Avoiding Common Holographic Will Mistakes
One of the most common mistakes made by people creating a holographic will is signing their name, or signing in such a way that indicates to the judge that the entire document was not created in their handwriting. As stated above, California law requires that a hand written document be entirely in your own handwriting for it to dispose of your property at your death. If you merely write your name on a document and nothing else, it is not effective as a will. So be sure if you do sign your name on your will, your signature is all you add to the document. Do not hand write any other information under your signature.
Another mistake commonly made when people are hurrying to get wills done is to leave out an important date. Since you cannot sign and date below the line for signatures, there is the potential that you can leave out important information about when the document was signed. Some probate courts may presume that a will was created on the day it was found, not on the date it was signed.
People have also tried to write in their state of residency and the date the will was created. But the law clearly states that only the signature itself can be in your handwriting, so unfortunately, people have to be forced to accept the form of will that they create, not the form they would prefer because of what the law prescribes. To be effective, the deadline and state of residency must be typed or printed in some form.
Holographic Wills: Benefits and Downsides
In deciding whether or not to create a holographic will, it helps to weigh the advantages and disadvantages.
Holographic wills have several advantages. One of the primary benefits of a holographic will is that it’s quick and easy. You can get them done fast and without an attorney which saves time and possibly money—and in California, they don’t even need to be formally witnessed in order to be valid. In the absence of witnesses, and the costs of hiring an attorney plus all the extra time and energy required to create a formal will; that sounds great… right? In principle, yes. But there are important qualifications to that statement.
On the downside, there are a few drawbacks to creating a holographic will. The ease and informality of a holographic will is actually what can make them the biggest problem for people. As noted above, you don’t need a witness or even a notary to create a valid holographic will—but that informality means that it’s easier to create a holographic will with ideas that aren’t necessarily formally organized . When a formal will is drafted and executed, it has the benefit of going through a process that makes sure that we understand everything we’re asking for right now and can attend to it. A holographic will however is more likely to be written on the fly and drafted when a person is not thinking straight or of their own accord. So it’s possible that there are human errors or issues involved that may or may not be addressed in a holographic will, but almost always, something is missed. That something could be very small or it could be the biggest part of your estate that you wanted to give to your heirs.
While the issue listed above is big enough as it is, the problems with prostates go beyond mistakes and missing information. You may think you’re being explicit when you write your holographic will, but the problem comes in how the law would interpret and understand the inferences. Whether or not they are enforceable, the law will do its best to try to enforce them—even if they are difficult or impossible to interpret.
How to Write a Holographic Will in California
To properly draft a holographic will in California, follow these steps:
- Date the Document – Although California law does not have a strict requirement that a document must be dated to be considered a will, it is strongly suggested that you add the date. This makes it easier to determine the order of wills.
- Intend to Make a Will – Include language in your document to show that you intend for the document to be your will.
- Identify the Executor – Clearly state who you want to act as the executor of your estate upon your death. You should also name a successor executor, in case the first person is unable to accept the position.
- Provide a List of Beneficiaries – Clearly identify all of your beneficiaries and whom you want them to receive under your will.
- Sign the Will – Sign the will at the end. Be sure that you do not sign in a way that would indicate you intended for that signature to apply to a separate document.
- Witness Signature – Find two witnesses to sign the document, but not in the section which you have also signed. Your witnesses should be impartial people who do not stand to gain anything from your will. In this way, they can help corroborate that the will is indeed yours if necessary. At the same time, a judge may determine in court that the witnesses were not necessary, even if someone challenges the validity of the will. Though witnesses are not required for a holographic will in California, it is still a good idea to include them to show that you intended to execute the document as a will.
Once the will has been signed by the witnesses, it should be kept in a safe place where it can be found when necessary. This is generally the original copy of the will. There are many commercial services that offer safe-deposit box access for estate planning purposes. You may also keep the will in a safe at your home.
Carrying a copy of the will with you at all times is not a good idea, however. You should go over the entire content of the will with your witnesses before they sign it. It may also be a good idea to show the will to your personal attorney if you have any questions about its contents.
When to Seek Professional Guidance
However, there are certain situations in which it is advisable to consult with an estate planning attorney, even if you plan to write a holographic will.
First, if you do not believe that your estate falls under the jurisdiction of the California Probate Code (this includes most estates with assets of more than $150,000), you may want expert counsel on how to minimize probate and tax burdens by properly distributing assets in several different ways. Although writing a will is a core function of an estate planning attorney, an estate planning attorney will also analyze your situation for issues that the average person will overlook that could eventually create significant financial liability.
Second , if you think that there may be any disputes about your estate, you should work with an estate planning attorney to resolve these issues upfront. Alternatively, if you believe that part of your estate is going to provoke litigation (for example, if you want to leave a smaller share of the estate to a minor child so that the bulk of your estate goes to your family), you will want to write your will in a way that minimizes the chances of any messy probate litigation down the road.
Third, if you have a complex estate, having the help of an estate planning attorney will allow you to handle all of your concerns in one sitting. Having to make multiple holographic wills may make the task of handling your estate even more difficult than it needs to be.