The Difference Between a Formal Will and a Holographic Will
In the state of Texas, two types of wills are recognized. One is the formal, self-proving will, and the other is a handwritten or holographic will.
A formal, self-proving will is what most people think of when they think of a last will and testament. This is a legally drafted, typed document that must be executed by the testator before two witnesses – and a notary public – who must also sign the will. It is usually created by an estate attorney who will ensure that all legal criteria are met.
A holographic will is a handwritten will. It must be completely written in the handwriting of the testator, and must be signed by him or her. It requires no witnesses or notaries. While some individuals create a handwritten will because of cost or convenience, many are created at the end of a person’s life because they are home or hospital bound and don’t have access to an attorney. Only about half of the states in the union recognize holographic wills as legally valid, providing they meet the correct legal criteria. Texas is one of those states.
Will much be written completely in the handwriting of the testator, the person making the Will, and signed by him or her
Criteria That All Wills Must Have to Be Legally Valid
Whether a will is a traditional, self-proving will or a holographic will, in order to be legally valid, it must meet certain basic requirements:
The person making the will must be 18 years of age or older, have been married, or been a member of the military.
The will must state that the person making the will, or the testator, has “testamentary capacity” or is of sound mind and able to understand the nature of a will and the consequences of it.
The will must state that the testator has “testamentary intent” or that he or she is creating the will with the intention of dictating the distribution of the estate after their death and voluntarily signing it as such.
Whether a will is a formally drafted document by an attorney or a self-drafted handwritten one, these are some of the basic essentials that make a will legally valid in the state of Texas.
What Information Should Be in a Holographic Will?
A holographic will can be effective if it is created carefully and correctly. Because testamentary capacity and intention are key to its legal validity, a holographic will needs to set these out clearly. The wording in the will should state the full legal name of the testator, that he or she is of sound mind, and is creating the will with the intention of setting forth their wishes for the distribution of their estate after their death.
The main body of a holographic will should designate an executor to administer the estate, pay off debts and distribute the remaining assets in the estate. It should name who should get what assets, with an accurate description of each item and the full name and relation of the beneficiary. If there is remaining property that is not individually addressed, a residuary clause can explain that all remaining items go to a specific person or entity. If there are minor children involved, the will should also name a legal guardian. The more precise the instructions, the less confusion after the testator’s death.
Since a holographic will is completely handwritten, legibility can be a problem. Consequently, a holographic will should be written as legibly as possible. The court will require the original will after the death of the individual, so it should be kept in a secure place, with family members or friends knowing where it is and how to access it.
Advantages and Disadvantages of Having a Holographic Will
A holographic will may seem simple and convenient and may be the only option in times of emergency, but there are drawbacks. A handwritten will is more easily contested and, if the court rules it invalid, it may leave the wishes of the testator unrecognized by the courts.
Individuals who create holographic wills usually do so without legal guidance. Consequently, they may not understand what information is required in order for their will to be valid. They may use vague language or fail to address critical information that a will should address which means that the courts may still get involved naming a personal representative to administer the estate, possibly someone that the testator would not have wanted.
While a formal, self-proving will that is properly drafted and witnessed can be difficult to contest, a holographic will with no witnesses to confirm its validity may be more subject to being challenged by interested parties and family members. If the court rules that a holographic will is invalid, intestate laws will dictate the distribution of the individual’s property instead of what the individual wished.
However, in the case of imminent death (and inability to reach an estate planning lawyer in time), being stranded or trapped, etc., a holographic will may be a good option – of course, if you’re stranded or trapped, you may not be reading this article either. One of the most famous cases of a holographic will was a Canadian farmer named Cecil George Harris. While plowing his fields one day, Mr. Harris’s tractor flipped over in the mud and pinned him underneath it. Unable to free himself, and recognizing the seriousness of his situation Mr. Harris took out his pocket knife and scratched into the tractor’s fender:
“In case I die in this mess I leave all to the wife. Cecil Geo Harris.”
The tractor’s fender including this message was removed and presented to the probate court as Mr. Harris’s last will and testament. The probate court found it to be a valid holographic willand admitted to probate the now-combination tractor fender/holographic will!
Reasons That a Holographic Will May Be Contested
Most properly prepared and witnessed wills are not contested, and the estate is distributed according to the wishes of the testator. But a handwritten or holographic will, since it is usually created alone by the testator and not witnessed by others, may cause concern with family or others who may choose to contest it. There are several reasons why a holographic will may get contested:
There is a suspicion that someone else wrote the will.
There may have been undue influence or pressure from another party.
The mental capacity of the testator was in question.
There is a suspicion that another subsequent will exists that may invalidate it.
While there may be very valid reasons for an individual to choose to write their own will, what matters is its legal validity under Texas laws and its clarity in its directions. A holographic will can effectively distribute an estate if it is legible, correctly worded, and executed. But (i) this is easier said than done, and (ii) relying on a holographic will significantly increases the odds that it may be contested and litigated.
Because creating a legally valid will can be complicated, a holographic will is not suitable for most individuals. A formal, self-proving will that is created with the guidance of an experienced estate lawyer is far safer and ensures that the estate will be distributed according to the testator’s wishes with little chance of being contested or invalidated by the court. Getting the assistance of a skilled lawyer is critical for making sure that your will has been correctly drafted and your wishes will be considered after you die.
Getting Legal Assistance
Enlisting the help of an experienced San Antonio estates lawyer in the creation of your will can ensure that you haven’t missed any critical matters that may invalidate your will. If you have questions about an existing holographic will or need a comprehensive last will and testament created, contact the Law Offices of Ryan Reiffert, PLLC to schedule an appointment.
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