A will can be as simple as taking a pen and paper and expressing your inheritance wishes. But how good will be your handwritten, unwitnessed will be if it’s all you leave?
Here are some important things to know about holographic wills:
1. Not All States Recognize Holographic Wills
Colorado is among the 25 states that recognize handwritten wills. However, the wills have to meet state-specific requirements if they are to be legally binding.
In Colorado, a holographic will must at least be in the testator’s handwriting and hand-signed by the person that made it.
2. Holographic Wills Tend to Be Ambiguous
Many handwritten wills are hard to read and decipher. Unlike a formal will prepared by an experienced estate planning lawyer, a testator-prepared will may not contain the expected language of a traditional will.
Handwritten wills may, therefore, not be clear on how property should be distributed and for which reasons. Holographic wills also rarely take into account other estate planning realities, such as taxes.
3. Proving the Validity of a Handwritten Will Can Be Tricky
After the death of a testator, it’s difficult to prove the validity of an unwitnessed will in probate court. A holographic will can then be a recipe for a protracted legal battle.
Since no one witnessed the testator sign the will, no one will come out to testify when contestants ask questions such as:
- Was the Testator Really Writing a Will?
There is really no way to tell if the document in question was a will or some notes to prepare for writing a formal will. It’s also difficult to establish whether there was a change of mind later or if there could be other notes yet to be found.
Is the Will Really in Testator’s Handwriting?
There must be reasonable evidence that the will is in the handwriting of the individual being inherited.
The court may rely on the testimony of persons familiar with the testator’s handwriting. And if forgery claims persist, the court may rely on the evidence of a handwriting expert.
Was the Testator under External Influence or Duress?
People hoping to inherit from a person can unduly influence the individual. If the circumstances of the writing and signing of the will remain unknown, others can question the influence of beneficiaries.
How Was the Testator’s State of Mind?
Persons signing wills should seem aware of what they are doing. People may argue the testator wasn’t in the right frame of mind, especially if the unwitnessed will is also undated.
4. Should You Write a Holographic Will?
Most estate planning attorneys won’t advise you to write a handwritten will. Unless you find yourself in a fatal situation and you don’t have a will, there is no justification for a holographic will.
Ultimately, it’s better to leave a will than to die intestate. Still, not all wills are created equal. These legal documents, depending on their type, vary greatly in their effectiveness. To enhance the effectiveness of your will, make sure this vital document is written and witnessed or notarized. And for the best insurance, let a trust or an experienced estate planning lawyer prepare your will.