Why A Handwritten or Holographic Will Can Be A Dangerous Idea.
Updated: Oct 5
Let’s be clear. Having a will as part of an estate plan, even a handwritten will stating your wishes concerning the distribution of your assets, is better than nothing at all. Unfortunately, writing a will can be a tricky task and significant problems can result when someone with no legal training writes their own will.
What Kind Of Problems Can Occur From A Handwritten Will?
A valid will requires compliance with a number of rules regarding technicalities like signatures, dates and witnesses. While the rules are meant to be less onerous for handwritten wills, a failure to abide by the rules can render a will meaningless.
Lack of specificity is also a common mistake. Even if you state which of your assets should go to a specific beneficiary such as a spouse or child or charity, , the language you use must accurately identify the asset, identify the heir without ambiguity, and state the terms of distribution. In the absence of including these details, your will could find itself the subject of court interpretation or even be disputed by other family members who may or may not be included. Ambiguity can lead to litigation, family conflict, and ultimately, distribution of your assets contrary to your wishes. The cost of engaging attorneys later to clarify ambiguities and mitigate disputes is certainly more costly than hiring an attorney to properly prepare your will in the first place.
What if you prepared your handwritten will while in the hospital or ill? Is it possible that disinherited heirs might challenge your mental capacity? Is it possible that your will won’t be enforceable in a court of law? There are protocols that an estate planning attorney can implement in such situations to help mitigate against challenges to your estate.
Avoiding conflict with previously prepared estate planning documents can be another challenge... For example, if assets like a home, bank accounts, or securities are held in the name of a previously prepared living trust, your subsequent handwritten will may have no effect over controlling what happens to those assets as they are being controlled by your trust-which is an entirely separate document from your will. In fact, it may be that an amendment to your trust is actually needed to create the changes that you seek. Without careful review of the impact on other estate planning documents, a handwritten will may be ineffective or create conflicts that require the intervention of a judge.
These are just a few of the problems that could occur when preparing your own will. Notably, the biggest problem of all may be whether a will is even the right estate planning tool or whether a trust may be a better option. That is a question best addressed with a lawyer who can guide you through the analysis based on your individual situation. Ultimately, estate planning, in whatever form it takes, is a smart and loving way to protect yourself and your family-but doing it without professional guidance can be not only difficult, but risky.
For more information about Wills and Trusts as well as Durable Powers of Attorney, Medical Directives, and other Estate Planning essentials, contact the lawyers at Family Security Law Group, serving families throughout the State of California. Visit our website at: www.familysecuritylawgroup.com. Or call us at 805-496-4681.