Wills written by hand (not typed or created on a computer or word processor), also known as holographic wills, are only valid in a few states. However, there may be very specific requirements. For example, California requires that all sections of the will necessary to make the will valid must be written entirely by hand, and that the person writing the will must sign it. If these state rules aren’t followed, the holographic will won’t be valid. Sometimes a handwritten will is better than no will at all, sometimes it’s not. If the person writing the will doesn’t know how to write a will and leaves out important language, or if the holographic will creates ambiguity or an unintended result, then the intended property might end up going to the wrong person. If the person’s property would have gone to family members under the state laws that cover property when there’s no will (a process known as intestate succession), having no will might have achieved a result closer to the will writer’s real intentions. Drafting your own will is not as complicated as one might think. In fact, anyone can do it from their own home with a pen, paper, and two witnesses. The requirements to create your own legal will in Utah are:
• You must be at least 18 years old
• You must be “of sound mind” (the fact that you are reading and understanding this article is sufficient evidence that you meet this test)
• You must write the will, whether typewritten or handwritten
• You must sign the will in the presence of two witnesses; and
• The two witnesses must also sign the will
It is also recommended that the will be dated, an executor named, and that the witnesses sign a self proving notarized affidavit so that their testimonies aren’t needed at subsequent probate court proceedings. There is no requirement that a will be recorded or filed with a government agency or that it be notarized. Alternatively, in Utah you can create a legally enforceable will without any witnesses by creating what’s called a “holographic will”. A holographic will is simply a will where the signature and material portions of the will are in your own handwriting. While this might be simple to do, it comes under extra scrutiny in probate court and that is why it is almost always worth the little bit of effort to prepare a typed will and have it witnessed. Although it is easy to put off, everyone should have a will. A will specifies who gets your property when you die and can serve other vital purposes such as appointing a personal guardian to raise your minor children.
If you die without a will, a court decides who gets your property and who best fit to raise your children is. Written entirely in the handwriting of the testator but when all the words appearing on a paper in the handwriting of the testator are sufficient to constitute a valid holographic will, the fact that other words or printed matter appear thereon not in the handwriting of the testator, and not affecting the meaning of the words in such handwriting, shall not affect the validity of the will, and Subscribed by the testator, or with the testator’s name written in or on the will in the testator’s own handwriting, and Found after the testator’s death among the testator’s valuable papers or effects, or in a safe-deposit box or other safe place where it was deposited by the testator or under the testator’s authority, or in the possession or custody of some person with whom, or some firm or corporation with which, it was deposited by the testator or under the testator’s authority for safekeeping.
In simple terms, you can create a handwritten document solely in your own handwriting and signed by you who can serve as your last will and testament. It’s important to emphasize that no portion of the document may be typewritten and no witnesses or notaries are required. This type of will is best reserved for simple general outright bequests of an individual’s entire estate, but as previously mentioned; there are drawbacks to this type of will. Wills are routinely challenged due to vagueness or other ambiguities. It is challenging enough for attorneys to draft wills and include sufficient language to demonstrate the testator’s (maker of the will) intent. A person who chooses to write a holographic will may fail to provide certain material language that could affect the distribution of assets.
Such a person may fail to include certain property items or assets, and create confusion about who was to receive such items. Another reason not to rush to writing a holographic will is that consultation with an experienced estate planning attorney may help you think through options available to you that you otherwise would not have considered. Clearly, creating a holographic will is not a decision one should rush off to make. With a minimal amount of time and relatively small cost, you can consult with an attorney to draft your will and have the peace of mind of knowing it was drafted correctly. A holographic or handwritten will can be a binding legal document, in some states and in some circumstances. It’s not common, but executors sometimes come across a handwritten will, signed by the deceased person but without any witnesses’ signatures.
The first question to ask is whether or not the document you’ve found was really meant to be a will. The person might just have been making some notes, in preparation for writing a real will. Look for evidence that the writer intended the document to serve as a will, including:
• a statement that “this is my last will and testament” or something similar
• language naming an executor
• language that indicates an intent to leave specific items of property (or “all my property”) to a named person or persons, and
• a signature at the end.
Some other states allow a holographic will to be probated if it was valid under the law of the state where it was signed. Finally, if the circumstances were unusual the deceased person was a soldier at war or a sailor at sea when the will was made—Maryland, New York, and Rhode Island allow holographic wills. But state law provides that the wills become invalid soon after discharge from the military or return to land.
Proving the Validity of a Holographic Will
After the person who wrote the will has passed away, it’s more difficult to prove the validity of a holographic will in probate court. The whole point of having witnesses watch someone sign a will, after all, is so that if there’s any question about the will’s validity, the witnesses can come to court and testify. They can state that they heard the person say the document being signed was his or her will, and that the person seemed aware of what he or she was doing and was not under the undue influence of someone hoping to inherit. If you’re an executor submitting a holographic will to probate, you must show: The entire will, or at least all the significant parts, is in the handwriting of the deceased person. That means a fill-in-the-blanks will form isn’t valid if the important parts—the clauses that leave property are preprinted. There must be evidence that the handwriting and signature are in fact those of the person who has died. This may be supplied by the testimony of people who were familiar with the person’s handwriting, or if there is an argument over the will’s validity, by an expert in handwriting analysis. The person intended the document to serve as a will. That’s usually shown by the language of the document itself, as discussed above. It might also be useful to have testimony from others, if the deceased person told them about the will.
Traditionally, a will must be signed by witnesses attesting to the validity of the testator’s signature and intent, but in many jurisdictions, holographic wills that have not been witnessed are treated equally to witnessed wills and need only to meet minimal requirements in order to be probated:
• There must be evidence that the testator actually created the will, which can be proved through the use of witnesses, handwriting experts, or other methods.
• The testator must have had the intellectual capacity to write the will, although there is a presumption that a testator had such capacity unless there is evidence to the contrary.
• The testator must be expressing a wish to direct the distribution of his or her estate to beneficiaries.
Holographic wills are common and are often created in emergency situations, such as when the testator is alone, trapped, and near death. Jurisdictions that do not generally recognize unwitnessed holographic wills will accordingly grant exceptions to members of the armed services who are involved in armed conflicts and sailors at sea, though in both cases the validity of the holographic will expires at a certain time after it is drafted. Holographic wills often show that the requirements for making a valid will are minimal.
How to Write A Handwritten Legal Will
If you do not have a will, you are leaving the state to decide on the distribution of all your possessions. If you have any possessions of value or any sentimental possessions you wish to go to specific individuals, you should have a legal will. Control where your possessions go. If you have extensive property and your wishes regarding the disposition of it are complex, you are probably well-advised to have your will written up by a lawyer. If on the other hand you have limited property and you can state your wishes clearly and concisely, a hand-written will could be quite adequate. Plus, you could be saving yourself hundreds of dollars. Correctly hand-written wills, known as holographic wills, are legal in only half of the states in the United States and only about half the provinces in Canada. There are also slight variations, between states, as to what constitutes a legal hand-written will. Do some research to find out what is legal in your state. If a hand-written law is legal it must be done, with slight variations, in the following way. Understand all requirements. To write a legal hand-written will, you must be of sound mind at the time of writing. Your doctor, dentist and many others who are part of your life would know this so it is not usually a concern unless you are in a position where the state of your mind is already in question. Write your will by hand. the will must be written from start to finish in your handwriting. None of the will can be typed and none of it can be printed or written by other than yourself. If even one word of the will is typed or written by anyone other than you, the will cannot be legal.
How to Make a Will Without a Lawyer
A lawyer is helpful in the will creation process because you can be confident that your will has been drafted according to your state’s laws. An attorney’s help is not essential, however. If you feel confident that you can navigate your state’s laws and express your wishes on paper in a clear and unambiguous way, you can make your own will. Each state has different formal requirements, but you may opt to comply with the laws of every state to help ensure that your will is valid.
• Start a new word processing document or begin writing in ink on a blank sheet of paper. No state is particularly picky about the precise form your will takes, but most require it to be printed in ink.
• Specify that the document you are creating is your will. Title the document “Last Will and Testament” and identify yourself on the first line by stating your name, city and state of residence, birth date, and your intent to create a final will.
• Identify your spouse or most recent ex-spouse by name if applicable. Also supply the date and location of the marriage or divorce.
• State the number of children you have who are currently living and supply their names. If any of your children are minors who will need care in the event of your death, state that you select a specific individual to act as your children’s guardian. Appoint one or two additional individuals who may act as alternate guardians.
• Appoint an individual to act as your estate’s personal representative. This individual will handle the legal processes involving your will and oversee the disposition of your assets to your beneficiaries. Appoint one or two additional individuals who may act as alternate personal representatives.
• Identify clearly any property you are giving away and the person whom you would like to receive the property. Be as descriptive as you can, stating the beneficiary’s full name and relationship to you. When describing property, do so in a way that will be unambiguous. For instance, provide the exact address of a house rather than just saying “my home.”
• Print your name, your current city and state of residence, and the date at the bottom of your document. Include a line for your signature. Below this line, create three additional areas for the names, addresses and signatures of your witnesses.
• Sign your will in front of three disinterested witnesses. A disinterested witness is someone who is not a named beneficiary in your will. After you have signed, have the witnesses provide their information and signatures on the appropriate lines.
Wills and Trusts Attorney Free Consultation
When you need legal help with a will or trust in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
itemprop=”addressLocality”>West Jordan, Utah
84088 United States
Telephone: (801) 676-5506