Holographic Wills, also known as FREE ESTATE PLANNING!
Every lawyer who has spent 2 seconds within the risk-averse walls of a law school knows that the worst advice a lawyer can give is “you should definitely try to do this yourself.” The same certainly holds true when it comes to estate planning. Yet, even I, of the famous Why DIY Does Not CYA blog post, am here to suggest that maybe, sometimes, in the rarest of scenarios, the best option is to whip out a pen and paper, and do it yourself. And, if you’re in one of those situations, and you’ve decided to write a holographic will, you better make sure you do it correctly.
What is a Holographic Will
First things first, what is a holographic will? Is it the same as a holographic Tupac? Trick question - Tupac was a hologram, which is a totally different thing, but I find it ridiculous that the word people made those two words so similar.
A holographic will is simply an unnecessarily confusing term for a handwritten will. Holographic wills are allowed in California.
How Do You Draft a Holographic Will
There are four simple rules to having a valid holographic will:
(1) The will must be HANDWRITTEN, i.e., in the handwriting of the will-maker. Technically, the will-maker could use a form and handwrite in the personalized parts.
(2) It must be clear that the will-maker’s INTENT is to make a will. While there is no “magic language,” one way to satisfy this requirement is to write “This is my last will and testament.”
(3) The will maker must have mental CAPACITY to make the will, i.e., the ability to understand that a will is being made. Unfortunately, you can’t simply write “I have capacity!” in your will. If you’re worried that your capacity might be questioned (such as if you’re gravely ill at the time of writing), you can take some steps to make your capacity easier for your family to establish. For example, you can date your will so that it is clear that it was made at a time when you had capacity, if you later become incapacitated. The more detail included about who is getting what and why can also be used as proof of a sound mind.
(4) It must be SIGNED by the will-maker. Note that is does not have to be witnessed or notarized.
When Would You Use a Holographic Will
Holographic wills are somewhat near and dear to my heart, as my mom - one of the smartest, most kick-ass attorneys I’ve ever known - passed away with a handwritten will. Her decision to leave a holographic will led to me spending 8 years and tens of thousands of dollars in Probate Court, so you’d think I’d be strongly anti-holograph. But she had absolutely valid reasons for her decision, and you might have valid reasons as well. So, in what situation would a holographic will make sense:
(1) You don’t have time to do formal estate planning.
If you have been given a bad prognosis, the best use of the little time you have left might be handwriting a will rather than spending your time and energy working with an attorney.
(2) You have a fairly small estate.
One of the major benefits of estate planning is that it can allow your family to avoid going to Probate Court after you pass away. (More information on the benefits of estate planning and particularly the benefits of avoiding Probate can be found HERE.) However, estates that are worth less than $150,000 do not need to go to the Probate Court, even without formal estate planning. Not everything counts toward this $150,000 amount, so feel free to reach out if you’re curious about this and I can give you more personalized advice.
(3) You’d prefer to save money in the short-term, recognizing that your family will have to pay more in the long-term.
It is, of course, free to write a handwritten will, whereas it costs money to have an attorney do estate planning for you. So, you can save money now by writing a holographic will.
If your family has to go through the Probate Court after you die, they will need to hire an attorney. Attorney’s fees in Probate Court are set by law and are quite high. For example, on a $500,000 estate, attorney’s fees are $13,000; on a $1 million estate, the fees are $23,000. (More info on this can be found HERE.)
However, to be blunt, you won’t be around then and may not care that more money will come out of your estate in Probate Court than it would cost you to do estate planning now. It’s your money! You get to do what you want with it!
(4) You want something in place while you’re completing your estate planning.
This sometimes comes up when a client has a particularly pressing worry that we simply can’t address in time. I have - on more than one occasion - had clients call me because they’re taking a trip soon without their children and they want an estate plan in place in the unlikely event something happens to them. Depending on how soon this trip is taking place, we sometimes can’t get it all done in time. If you are in that or a similar situation, it might make sense to handwrite a will to at least cover guardianship of and gifts to minor children, for peace of mind if nothing else.
Alternatively, this could come up when clients are struggling to agree on their estate planning. Estate planning is an area of the law in which emotions and feelings and family dynamics play an outsized role. It is also one of the few areas in which two people typically work jointly, toward a common goal, represented by one attorney. Issues can arise in the simplest of circumstances, but disagreements are even more likely to emerge when clients are part of blended families. What happens when these two people struggle to agree?
The black-and-white, law school textbook answer is that the two people would hire separate attorneys to work through these issues and come to a mutually beneficial and agreed upon result. However, marriage dynamics do not always play out the way the textbook says they should and sometimes it feels impossible to suggest such a thing. Not to mention, hiring a second attorney adds to the cost of completing your estate planning.
In these situations, where couples cannot agree yet it doesn’t feel possible to suggest working with separate attorneys, a holographic will may be a stop-gap measure.
You Probably Shouldn’t Do a Holographic Will, Unless You Should, In Which Case, Do It Right
In conclusion, you will always be better protected by doing formal estate planning with the advice and assistance of an awesome attorney like myself. However, there are a few, narrow situations in which a holographic will might make sense, at least as a short-term measure. If you think you may fit in one of those situations, always feel free to REACH OUT and ask me my advice, and I’m always happy to help. If you do decide to handwrite a will, make sure you follow the four simple rules laid out above.