Making a Holographic Will

File this one under “interesting, but hopefully I’ll never have to use it.”

For a long time, my wife and I discussed making out a will. Who would we leave our children to should something unexpected happen to us? Where would our assets go? After a lot of soul searching and discussion, we figured out what we wanted and created a will stating these things.

However, that didn’t cover all of our bases. I wanted to make sure that several personal items of mine would go to specific people in the event of my singular death. Although I completely trust my wife to handle this for me, I still desired to have a clear and legally binding explanation of what I wished to happen to a handful of personal items.

Upon hearing about this, one of my wife’s relatives suggested that I make a simple holographic will for those things. “Sure, all you have to do is write down your instructions and sign it in your own handwriting. It’s foolproof!”

It seemed to simple to be true – and it was, for my case. It turns out that I live in Iowa, where holographic wills are not legal (I eventually decided to trust my wife with the disbursement of such items). However, in twenty-five of the fifty states, a document as described above does actually function as a legal will.

You’re kidding, right? According to Lawchek, a holographic will is in fact legally binding in many U.S. states. Some states require a witness, while other states do not require anything of the sort. Check that site to find out the specifics in your state. It may also be useful to call a lawyer in your state just to be sure of the specifics – this is a great question to ask if you have access to free legal counsel at some point.

How exactly do I make a holographic will? All you have to do is write out, in your own handwriting, specifics on how you want your estate (or specific elements of your estate) to be disbursed to people. For example, you may want to explicitly list that certain personal items go to specific people and so on. You may also want to direct that all remaining assets go to someone in specific. You must also sign it at the bottom.

In some states, you may have to have a witness who also signs the document – consult the rules in your state for more information.

It is important that if you make such a will, you are specific and very clear with your wishes. It is probably worthwhile to include a blanket statement leaving the remainder of your estate to someone you trust so that if there are issues of ambiguity, you can have some faith that the person you trust will act in your interest anyway.

When might a holographic will be useful? The most obvious situation is when you are in imminent danger of losing your life. For example, if you’re trapped in a cave during a snowstorm and you’re concerned you might not make it out alive, you may want to write a holographic will. A person might also write one out if they are terminally ill and want to make sure that their wishes are recorded because they believe the end is near.

Should I go this route for making my own will? In short, no. Although it’s something very useful to know if you are in a desperate situation, the inconsistent legal nature of a holographic will makes it something not worth trusting your estate to unless you’re in that desperate situation.

A much safer route would be to write out your wishes in the form of a holographic will as a draft of your real will, but then follow that exercise up with the creation of a true will with those principles. This way, you can be sure that it will be legally binding.

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  1. sbt says:

    As Trent said, be careful about this. If all you want to do is make sure your nephew gets that watch he always loved, you can do this by writing out a declaration to distribute personal effects. This would be an addendum to your will. A holographic will can replace the will you executed and signed with your lawyer. Most of the time this is a bad, bad idea. Anything labeled a will and dated generally invalidates all wills with an earlier date. So then, things that aren’t mentioned in such a document will not be distributed according to your prior will, but according to state law.

  2. LALAWYER says:

    Note: In the State of Louisiana this is referred to as an OLOGRAPHIC will (not a holographic).

  3. Nick says:

    I guess we can blame lawyers for creating laws that prevent people in certain states from using holographic wills. After all, I’m sure they lobbied heavily on this so they could increase their business.

  4. Matt says:

    In some countries even a will expressed in speach is legaly binding. This works in situations when you did not have a written will and you expressed it before your death in front of at least two witnesses.

    In practice however it is easy to take a case to court and change the will.

  5. Mitch says:

    Nick, the more likely reason that states have laws against the use of holographic wills is that someone on their deathbed (possibly delirious from pain or drugs) could be influenced to draft such a document by a greedy family member or friend. Outlawing the use of holographic wills eliminates such situations and prevents costly legal battles.

  6. Megan says:

    Wills are certainly a good thing to have. I’d never heard of holographic wills, and I hope to never be in a situation to need one.

    And while a little off topic, don’t forget the importance of a living trust, especially if you have minor children and/or own real estate. Also, a living trust allows you to avoid probate on your assets. It is more expensive to draw up than a will and must be actively managed and funded, but it provides much clearer directions and far fewer headaches for your remaining relatives in the event of your death.

    Here is an article that I feel accurately compares wills and living trusts:

    http://www.legalzoom.com/legal-articles//article11110.html

  7. bmommy says:

    Thanks for the link because my husband & I have a holographic will that we thought would hold up…however, looks like for Georgia they are in fact illegal though.

  8. David says:

    This article left out an important fact–it must also be dated. Also, there are cases out there that void holographic wills because letterhead and/or other pre-printed material is on the page. Each state is different, but to be enforceable, it must be (1) entirely hand-written, (2) signed, and (3) dated. But really, you really should go to a probate lawyer. People screw these things up all the time and unintended consequences happen. It’s worth the money.

  9. Kirby says:

    As a lawyer, let me offer my “two cents” on holographic wills. First off, let me say that I completely support individuals being able to craft their own legal instruments. The problem is that these instruments often create more problems than they solve.

    Nick’s comment is understandable. Many people view lawyers as being greedy and self-serving, and as in most fields, some do meet the stereotype. However, the problems with holographic wills and the reason why many states do not allow them has nothing to do with the self-serving interests of some lawyers.

    Mitch correctly points out that holographic Wills could be used to take advantage of an someone while they’re under duress or suffering, but in my opinion, that’s not the greatest problem of holographic wills.

    Take into consideration what someone might put in their holographic will (or any will for that matter) – who gets their home, who gets their car, etc. If the average individual wanted to give their son Paul the family car, they might write down, “I give Paul my 2006 Honda Accord.” This is a seemingly reasonable way to write such language, but it creates the potential for problems down the road. What if at your death you don’t own that 2006 Honda Accord? What if you own a 2008 Toyota Corolla?

    At this point, you could make two very reasonable assumptions. Either you meant to give whatever your car was at the time of your death, or you literally meant to give that 2006 Honda Accord because your son Paul absolutely loves Honda Accords and now that you no longer have it, you’d rather it just pass through your estate in probate.

    Not to belabor the point, but consider other common examples of this problem that might occur if you included stocks you own, antique furniture, etc. Ultimately, the goal of any will, whether it is holographic in nature or one that conforms with the proper requirements of a valid will has one goal in mind – achieving the wishes of the person who made it. Holographic wills, while sounding like a reasonable means of achieving that goal at first blush are a problematic means of doing so in reality.

  10. JP says:

    Nick, Mitch is exactly right. In any case, the outlawing of holographic wills does not mean you have to go to a lawyer to write your will. You can still compose it yourself and type it up yourself, etc.

  11. Lawyer says:

    Recognition of holographic wills opens the door to all kinds of fraud and interpretation issues.

    Lawyers don’t need to lobby heavily to increase their business. Peoples’ greed, selfishness and carelessness ensure that lawyers will always be in high demand.

  12. Kevin says:

    How timely, my wife and I just submitted the paperwork to finalize our wills today. However, I also plan on leaving another written document spelling out how I would like our trustee to handle our funds should it come to that. Is it binding? Probably not, but it’s more of a guideline to help our family than a legal document.

  13. T says:

    Am I the only one who was expecting wills with cool holograms on them?

  14. Matthew says:

    I couldn’t disagree with Nick more. His comment is typical of misplaced lawyer bashing. If there are state laws that limit some proposed action, it’s a legislative matter.

    Yes, I’m a lawyer, and yes, I’m in the business of working with people on their estate plans. And, yes, my law office is a business. But to suggest that lawyers are evil because a particular state has a law on the books that prevents certain actions seems misplaced.

    I frequently meet with people who try to save money by doing things themselves. For example, getting a “do your own will” book. The problem is, these books provide only general information, and are frequently published for a nation-wide audience: they don’t (and can’t) address situations specific to each individual’s state of residence, and they don’t (and can’t) provide legal advice. Many times, people I meet with are in a worse situation than if they they would be if they had either (a) consulted with an attorney up front; or (b) done nothing. Then they have to take steps to remedy the situation.

  15. David says:

    @T:

    I had visions of Princess Leia coming out of R2D2, too.

    “Help me, Trent-Wan Kenobi…you’re my only hope.”

  16. palm says:

    It’s hard for me to imagine a situation where a holographic will would be a good idea. If you’re desperate to make sure a particular asset goes to someone, don’t leave for that mountain-climbing trip without drafting a real will. Otherwise it seems like a great way to send your family straight to court. E.g. when he said “I leave everything to my wife and my three kids” was that 25% shares to each survivor or half to the wife and half to the kids? Etc. You might as well write a will that says, “I’d like all of my assets to go to the most rapacious lawyers my family members can find.”

  17. With a new baby in teh house, I certainly need to get a formal will completed ASAP.

    @T – Also expecting a cool hologram.

  18. Gmg says:

    By way of disclaimer, I am an attorney, licensed in two states – one allows holographic wills and the other doesn’t. One thing that you should include in your holographic will (and you should further research the details of the requirements anyway) is where you are located when you write the will. If you live in say Virginia and write a holographic will and then move to New York, where they are not allowed, your Virginia holographic will is still valid.

  19. Ryan McLean says:

    Thats very interesting. I don’t live in the states, but its still interesting to find out. I think here you have to have a legal will done with your lawyer.

  20. @T – Was totally expecting holographic wills to be way cool holograms. Glad I’m not the only one. But, perhaps I will explore the idea of a hologram will a little further…

  21. AnnJo says:

    PLEASE, PLEASE do not even suggest holographic wills as an option for disposing of personal property you don’t want to list is a “formal” will. “Holographic” wills simply mean wills entirely written in the testator’s handwriting, and not witnessed. Whether these wills can be accepted varies from state to state, most do not accept them, and the rules even where they are accepted can be very strict and complicated. But under no circumstances do they simply supplement a more formal previous will. If they are accepted at all, they completely revoke and replace the ENTIRE previous will. There are few circumstances under which you could conceivably want to do this.

    Some states allow a separate signed and dated listing of items of personal property to be distributed as directed by the list IF a reference to the listing is mentioned in the Will. In Washington State, where I used to prepare Wills, I would include a paragrah that read like this:

    Pursuant to RCW 11.12.260 [this is the statute that allows for this], I may hereafter prepare a signed and dated list of items of tangible personal property which, as tokens of friendship or family connection, I wish to dispose of upon my death as therein directed, and my Personal Representative [alternate term for Executor] shall make such distributions as are directed on my list.

    Many states allow some version of this option, possibly including your own state, Trent. Ask your lawyer or see if your state’s Bar Association has an information page concerning Wills and Estates.

    As for those who think that the rules for Wills were made complicated so that people of modest means would be forced to go to lawyers to have them prepared, nothing could be farther from the truth. Most lawyers hate preparing simple wills, even with the miracle of word-processing, and they are often not money-makers compared to other uses of the lawyer’s time. At best, a drawer full of Wills represents a future flow of probate fees, if the lawyer succeeds in outliving the client and still wants to hobble up to the courthouse from time to time.

  22. bethh says:

    I totally pictured a 3-D Trent giving out his instructions. Drat!

    I don’t have a will at all, and my siblings are already the beneficiaries on my retirement accounts, which is the majority of my assets (I’m single, no kids). In my case, seems like a holographic will would be better than nothing.

  23. Michael says:

    This is one reason why everyone ought to know a notary public.

  24. spaces says:

    You definately don’t want to rely on a holographic will. Even in states where they are legal, someone will have to prove that the handwriting was yours, and they are a pain for your heirs to administer and probate. Also, most states put restrictions on the types and amounts of property that can pass under a holographic will. Real property, for example, most typically cannot be transferred by holographic will, and it is not uncommon for personal property over a certain (relatively low) dollar value to be prohibited from passing under a holographic will as well.

    If you want to keep a side list, the best practice in many states is to execute a will that refers to a codicil (side list) to be executed later. Then you use the codicil to make your list. In that situation, the codicil would not purport to be a will, but rather would refer specifically to your executed will. The codicil should still include certain formalities, such as execution in front of witnesses and a notary — again, these vary by state. With both documents, you would be left with a “permanent” will that disposes of most of your property, along with a side document that is easier to revoke and easier to replace to dispose of the listed property.

  25. Brandon says:

    Holographic wills are not valid in some states because they often end up being litigated and tie up the courts and lawyers. It’s much cheaper to have a will drawn up properly with a competent attorney than to spend time/money litigating a holographic will case.

  26. bunny says:

    i think it would still be a good idea to write out instructions for the other things you want distributed. while it may not be legally binding, you could expect that the person who takes care of things once you pass would want to respect yr wishes. also, yr wife may be too distraught to deal with even thinking about yr possessions when the time comes, a simple list would make the task easier.
    it’s a terrible thought, but if the worst should happen and you were both taken at the same time, it would be good to have that back up then as well.

  27. Trent, I have been a member of PrePaid Legal Services, Inc for about six years. I pay $26/month and call all the time for advice on legal matters. A local attorney here in town did my Will for free (included in the membership) and I am very happy with it. I bet I use their service several times each month. I know I have saved thousands of dollars.

  28. Ken Deboy says:

    You’d be much better off with a family trust instead of a will of any type.

    Cheers,
    Ken

  29. Stars says:

    What about Canada? (I will do my own research, just curious)

  30. Stars says:

    Holograph Wills are valid in Ontario, Alberta, New Brunswick, Newfoundland, Quebec, Manitoba and Saskatchewan. In Nova Scotia and P.E.I the use of holograph Wills are not permitted, although the law in P.E.I. was amended to permit a “substantial compliance” provision (Sec. 70 of the Act) to allow the court to recognize a holograph document if it is signed and judged to represent the testamentary intentions of the deceased. In British Columbia holograph Wills are not allowed, but the law will uphold a valid holograph Will made outside of B.C insofar as it applies to moveable property in that province. (sec. 40 of the Wills Act) http://www.professionalreferrals.ca/article-113.html

  31. Dawn says:

    I found this really useful. I had a will that was set up when I was married. However, I am now divorced. A holographic will is legal in my state, and I would want it to replace the old will. I know that I am better off getting a new official will done, but right now it is a matter of financial priorities. As soon as I can I’ll contact my attorney, but in the meantime I will feel better having this in place as a temporary stopgap. Thanks!

  32. Debbie M says:

    Actually, whether a will or trust is better depends where you live. I think in California you’d rather have a trust, but most people in Texas would rather have a will. That’s because will probates are cheap and quick in Texas.

  33. Kelly says:

    Nick – In most states, Attorneys fees for probate of a will (post-death administration)are set by statute regardless of whether the will is holographic or not. ]

    Frankly, we’d rather the will not be holographic since they are subject to attack and not easily admitted to court. Trust me – I had to probate a holographic will on a bar napkin and it wasn’t fun.

    Also, in California, wills are not notarized.

  34. Sharon says:

    Trent, you could take a videocamera and explain why you want specific things to go to which people. Also, many people are also making “ethical wills,” which have no legal standing, but are a good way to pass on your values to your family. You have your column, which does a nice job, but they can be a very meaningful addition to your estate planning which will give your family members much comfort later.

    Certainly, if you have young children and a terminal diagnosis, this is a great way to record messages for turning points in the child’s life. Congratulate them on their Confirmation, 16th birthday, the first time they get fired, their wedding day, the birth of their first child, etc.

    Hope you don’t need to do this!

  35. Heather says:

    Not to beat a dead horse, but I don’t think this is such a great idea, either. Not reliable, that is. Where would you keep it safe? My grandpa kept it with the family jewelry box. What’s the first thing that gets fought over when a relative dies? After the house, it’s usually the family jewelry or “treasure” box. Basically, that will is lost in no time, and surfaces too late or not at all. In our case, my grandpa’s ex-step-daughter (yep, you read that right) took the jewelry before we could fly out to his home. She naturally destroyed the holographic will.
    My advice: Make multiple copies from the computer, with digital backup, and give them to family and/or trusted friends. You have a good chance that one of them is trustworthy.

  36. junk mail man says:

    A holographic will is always and everywhere a horrible idea. As other commenters have said, all wills need to be “proven” – and the signing ceremonies and attestations that accompany real wills drafted and executed in attorneys’ offices make the documents self-proving. A holographic will cannot be probated (even where they are in some sense “legal”) without basically having a full blown trial. It’s just a complete disaster.

    Here is an alternative: if you can’t afford to have a real will drawn up (mind you, our law firm charges about $400 for consultation, drafting, execution, and storage of an individual will along with powers of attorney and health care directives – hint: if you own a video game console, you can afford a real will)…if you really can’t afford a real will, just make immediate gifts those special items to your intended beneficiaries while you are alive, and let the intestacy laws take care of the disposition of your other assets. Those laws make pretty good sense, and better yet, nobody can contest them. A holographic will, on the other hand, is like an improvised explosive device. Whether or not you have prior wills in existence, it can only introduce uncontrollable variables into the disposition of your estate when you pass. It’s a horrible idea.

    In my state, New York, holographic wills are completely void unless the testator writes the will during armed combat or on the verge of shipwreck at sea.

  37. If your situation is simple, you can make do without the lawyer. We got Nolo Press’s guide to simple wills, which gives some useful templates for passing on specific items, designating where the remainder of your estate goes, and appointing guardianship of children. The templates are supposed to be good in most states (I think Louisiana was the exception).

    One of the things I like about the book is that it also tells you when you’re better off consulting a lawyer instead of just using the templates they show. (For instance, if you have past marriages or children from prior relationships, if you own a business, or if you have enough assets to be subject to estate tax, none of which apply to us yet.) It also reminded us to check beneficiary designations for our life insurance and retirement plans, which aren’t necessarily covered by the provisions of a will.

    We typed up a couple of wills using the templates, took them and a couple of folks we know to a local notary, did a quick series of signatures, and that was that. (This is *not* a holographic will, because of the witnesses and notarization.) Total cost, including the book: about $40.

    We might eventually go with lawyer-drafted wills when we’re older, and more elaborate arrangements are in order. But this should do us for now, and if you have a spouse and/or kids, it’s often much better to have a simple, clear will (even without the lawyer) than no will at all.

  38. Sharon says:

    How about if they are trapped in a snow cave with a broken leg? Sharon

  39. Bill in NC says:

    Wills are OK, but trusts are usually better.

    Wills are public documents, trusts are not.

    If you are known to have substantial net worth and use a will to distribute your assets, your beneficiaries will be targets of every scammer out there.

    Not so with a trust.

  40. Matt C. says:

    At least in Louisiana, it’s perfectly alright, so long as it is “entirely written, dated, and signed in the handwriting of the testator.” (Civil Code article 1575, http://www.legis.state.la.us/lss/lss.asp?doc=108900).

    As far as proof is concerned, you need to have people who can attest (by affidavit, usually) to familiarity with your handwriting.

    Although, as a lawyer, the laws of intestacy work just fine for me.

  41. Lil Helper says:

    Holographic will are legally recognized documents in 25 states.

    Is your state one of them? Check out this link to see: http://www.lawchek.com/Library1/_books/probate/qanda/holographic.htm

    Also, the website provides the state statute/law for your own state code. This will can look up the law and find out the specific steps you must follow to make the holograph a legally binding document.

    If you do not know how to look up a state statute, copy down the number listed under your state. Then, go to the library and ask a librarian for help.

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