A last will and testament is one of the most important estate planning documents you should have, and California allows its residents to create different types of wills. The holographic will, for instance, is one that is written and signed in the testator’s own handwriting. While a holographic will has its advantages, it needs to be prepared in accordance with state probate law to stand up in court.
Writing an Enforceable Holographic Will
Although a holographic will is written and signed entirely in the testator’s own handwriting, it does not need to be dated, and its signing does not need to be witnessed.
If a holographic is compliant with state law, it should be enforceable in probate. However, any will which is inconsistent in any way can be challenged or simply declared invalid by a probate judge.
When writing your holographic will, you should include at least the following information:
- Your full name and place of legal residence
- Your intent in writing a holographic will
- Whether you have written any other will—if so, and you wish for such previously written wills to be invalid upon the signing of your holographic will, you must explicitly say so
- Explain if you wish to disburse assets to loved ones after your death, appoint a guardian for your minor children, and/or grant someone the power of attorney
You may also wish to explain why you have decided to bequeath certain gifts, assets, or properties to each of your loved ones.
While offering such an explanation is not required by state law, it shows that you are of sound mind and understand the consequences of your estate plan—thereby pre-empting any challenge that you did not possess the mental faculties to write or revise a will.
The Potential Problems With Holographic Wills
Even though California law recognizes holographic wills, they can be harder to prove in court than a will which was signed by witnesses. If no one saw you write your will, the probate court must be convinced that it was, in fact, written in your own handwriting or authorized to be written in someone else’s. In a worst-case scenario, your estate representative may have to call in relatives from distant states to check the handwriting in your will or even hire an expert.
If your estate representative cannot convince a probate judge that you wrote your own will, they might declare it invalid and distribute your assets in accordance with intestate succession statutes.
Under California’s intestate succession laws, the probate judge will have no choice but to distribute your assets according to a pre-defined legal formula, one that privileges certain relatives over others and may deprive your friends and relatives of gifts you wanted them to have.
Contact an Attorney Before Writing Your Will
Since holographic wills have the potential to become very problematic, you should consult an attorney before putting your estate in the hands of a probate judge.
An estate planning attorney can give you tips on how to write a secure holographic will and explain the advantages and disadvantages of holographic wills versus “traditional” wills.
Furthermore, you may be surprised to learn how other estate planning tools can help you better preserve your legacy and save you money and reduce your tax obligation while you are still alive.
Do You Need To Speak With An Attorney About Estate Planning?
If you need to speak with an experienced estate planning lawyer please contact us online or call us directly at 800.756.5596 to first register for one of our free, informative seminars. Your attendance will qualify you for a special discount for our estate planning services should you decide to make a free appointment at the conclusion of the seminar and choose to proceed with us. We proudly serve clients throughout California with offices in Torrance, Newport Beach, Orange, Woodland Hills and Pasadena.