Can or Should I Hand Write My Will?

Durham Estate Planning Lawyers

What is a Holographic Will?

A Holographic Will is simply a fancy name for a Will that has been handwritten by the testator (the person that the Will is for).

What is required for a handwritten Will to be legally recognized?

There are a few requirements in making a traditional Will valid, including that it is written and signed by the person who wrote the Will, also known as the testator, as well as signed by at least two witnesses that saw the testator sign the Will.

A holographic Will is entirely handwritten and is only valid in North Carolina if it is entirely written in the testators handwriting and signed by the testator. The testator must have “testamentary capacity” meaning that they have the mental capacity to sign the Will and knowledge of what they owned and who their family members and beneficiaries are. They also must have “testamentary intent” meaning that they know that the document they wrote and signed was intended to serve as their Will.

In North Carolina, a holographic Will does not require signatures of witnesses in order for the Will to be valid, but having those witnesses sign may be a good idea just to be safe and eliminate any question about if the testator actually signed the Will.

Is a Handwritten Will a Less Expensive and Easier Option?

At first glance it may seem like handwriting your own Will could be a simple solution to making planning for your future as cheap and easy as possible…but keep in mind you pay for what you get. Here are some negative outcomes that you are likely to see from writing your own Will:

1. Lengthy and expensive probate process.

All Wills must go through probate court in order to take effect after the individual passes away. That being said, handwritten wills commonly result in complicated, expensive, and lengthy probate court proceedings. Due to the nature of the handwritten Will, there can be a lot of questions around ensuring that the testator had the testamentary capacity and intent mentioned above. This may seem simple and obvious, but there may be question of if the testator actually wrote the Will or if someone else had an ulterior motive to access the deceased individual’s assets. There may also be questions around whether or not the individual was simply just writing their thoughts about what they wanted to include in their Will versus that particular handwritten document actually serving as their Will upon their death. Not to mention, that what the individual wrote in their Will may be very clear to them, it may not be so clear cut to the court. Answering all of these questions to ensure that the deceased individual’s desires after their death are being carried out in the way that they intended can be very time consuming, draining, and expensive.

2. Handwritten Wills often do not provide enough information.

It is difficult for anyone that does not have the amount of knowledge and experience equal to that of an estate planning attorney to include enough information in their own handwritten Will to provide adequate context and direction for everything that is necessary to account for in a Will. In other words, Wills done by an estate planning attorney cover many situations, many of which may not ever happen to you, but they very well could and if they do, the Will crafted by a trusted lawyer will provide guidance on what to do whereas a handwritten Will done by the average person may fail to include some of these “what if” situations. For example, what if the person you name to receive your assets becomes incapacitated by the time they should be receiving your assets according to your will? Does their Power of Attorney agent receive your assets?

3. Some states do not recognize handwritten Wills.

While North Carolina does recognize handwritten Wills, other states that you may move to in the future do not. About 50% of US states recognize handwritten Wills and the other 50% do not. Keep in mind that even of those that do recognize handwritten Wills, they may have different rules about requiring signatures from witnesses and if the Will is allowed to be typed, etc. If you relocate to a state that does not accept handwritten Wills, the process would follow as if you did not have a Will at all meaning your money and property will be distributed to the heirs specified in the State’s “intestate” laws which may not be the people you would have chosen.

Let us help you carry out your wishes as you intend to after death.

As you can see, handwritten Wills are an option and if you know someone that has passed away with a handwritten Will, we can help you work through the probate process. However, if you have not made a Will with a trusted estate planning attorney, please call us today so that you can rest assured that your loved ones won’t have to worry about suffering the burdens and questions that come with a handwritten Will. Having an experienced estate planning attorney draft a will that is properly will facilitate a smoother probate process, avoiding the unnecessary expenses that so often arise when a will is handwritten, so call us today to get started by scheduling a complimentary consultation with one of our experienced estate planning attorneys.

Call us today to schedule an appointment to review your existing plan or draft a comprehensive new estate plan.