Some states recognize handwritten or holographic wills under limited circumstances, such as Alaska, Arizona, Arkansas, California, Colorado, Idaho, Kentucky, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, New Jersey, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming. But is a handwritten will a smart idea?
In some of these states, if a will was handwritten by its maker, the state will recognize the will provided it was executed with the state’s requirements for valid wills.
Many states require, among other things, that at least two witnesses attest and sign the will in the presence of each other, as well as in the presence of the maker. Handwritten wills must comply with these requirements to be valid.
Think Advisor’s May 20 article entitled “Relying on Holographic Wills Is a Terrible Idea,” says that, while a holographic will could be valid in your state, there are many instances where attempts to comply with the state probate laws failed.
If the maker of a holographic will lives in a state that doesn’t accept handwritten wills, the will isn’t valid.
In those cases, if there aren’t any valid prior wills, the testator’s property will be distributed to his or her heirs according to state intestacy law, rather than the intent of the testator.
This makes it problematic for someone who makes a will — handwritten or not. That is because the maker of the will intended for the assets to pass in a certain way, and perhaps not how the state’s laws say the property should be divided.
Some people are not too concerned with making a will. However, that may be a result of a person not having many assets, or the individual relying on will alternatives, like intestacy laws, joint bank accounts, payable or transfer on death accounts, and certain deeds, such as real property owned tenancy by the entirety (property owned by a married couple).
Some states also have what is known as a ladybird deed, an enhanced life estate deed, or a transfer on death deed. This document permits the owner of the real property to have control of the property until he or she dies. The property is then transferred automatically to the person(s) named in the deed. It’s essentially a ladybird deed as being a pay-on-death account for real estate.
For specifics and how they might apply to your particular circumstances, talk to an experienced estate planning attorney.
Reference: Think Advisor (May 20, 2021) “Relying on Holographic Wills Is a Terrible Idea”