Wills are the most common testamentary instruments used in taxes. The law generally requires that people draft written wills and sign them.
Traditional wills or formal wills are often transcribed by an attorney, signed by the testator and then signed by at least two witnesses. Some people prefer a faster, less complex solution. They elect to draft holographic wills.
Doing so may seem like a great solution initially, but it could cause numerous challenges down the road.
What is a holographic will?
A holographic will is essentially a handwritten document outlining someone’s legacy wishes and potentially meaning a guardian for their minor children. Unlike formal wills, holographic wills do not require witness signatures or the support of a lawyer to create.
Are holographic wills legal in Texas?
Technically, Texas state statutes do allow people to draft handwritten or holographic wills. However, they are often subject to more scrutiny than formal wills drafted with an attorney and signed by witnesses.
What is needed for a holographic will to be valid?
A holographic will must be in the handwriting of the testator creating the document. The person drafting the document must specifically indicate that the document is their will in writing. They have to outline their assets and indicate who should receive those belongings.
They also need to indicate who they want to appoint as their independent executor. That executor presents their will to the probate courts and handles the overall estate administration process. The will usually needs to include language indicating the executor can serve without bond. Finally, the testator must sign and date the will if they want the probate courts to treat it as a valid document.
What are potential problems with holographic wills?
The potential issues with holographic wills are extensive. First and foremost, holographic wills require witnesses who can testify to the validity of the documents and affirm the testator’s handwriting. Given how infrequent handwritten communications are, such testimony can be much harder to come by now than it was just a few decades ago.
Beyond that, there is the very real concern of forgery or alteration. Other people might try to change the will or replace it with a document they draft by mimicking the testator’s handwriting. Finally, holographic wills are at risk of loss.
Family members or the person chosen to serve as the executor might not be able to locate the will after someone dies. The courts may then move forward with estate administration as though someone died intestate without an estate plan. For most people who want to provide support for their loved ones or control what happens with their property, a holographic will is not the best solution.
Taking the time to partner with an estate planning lawyer can lead to enforceable, valid documents that family members or beneficiaries can readily find after someone dies. Those who understand the limitations of holographic wills can make informed estate planning choices.