Is your Hand Written Will Unenforceable? Does your State Recognize Holographic Wills?

Is your Hand Written Will Unenforceable? Does your State Recognize Holographic Wills?

In the past I have discussed Who Needs a Will? hint: Everyone and have provided 10 Reasons why YOU need a Will As Soon as Possible but something occurred to me, not everyone knows the requirements to create a valid Will in their state.

I was discussing the possibility of drafting a Will for someone, when the person said, “Can’t I literally just write what I want on a piece of paper?”  This made think that everyone should understand the first requirement (which is the most important), does your state accept holographic Wills?

last-will-and-testament

Are Hand Written or Holographic Wills Accepted in your State?

What is a Holographic Will? Is it written on really cool paper? Nope!  Despite its cool name, a holographic Will is defined by Black’s Law Dictionary as

a Will written entirely by the testator in his or her own handwriting and is not witnessed.

The easiest way to think about it is when you write what you want to happen to your stuff after you die on a piece of paper by yourself one lonely night.  Well each state has their own rules associated with a hand written Will.

Luckily, I found this comprehensive list on LawChek.com it seems to be updated in 2003, so some statutes might have been changed.  Since I do not have the access, nor the inclination to look up every state’s statute I would recommend verifying your state’s statute.  Actually, I think everyone should have an attorney draft their Will rather than those $50 services on the internet.

ALABAMA
A Holographic Will is not recognized as a valid Will since the state law requires that every Will be witnessed by at least two witnesses.

ALASKA
Alaska recognizes a Holographic Will as a valid Will, whether witnessed or not, if the signature and material provisions of the Will are in the testator’s handwriting.  (Code Section 13.11.160)

ARIZONA
A Holographic Will is recognized as a valid Will, whether or not it is witnessed, if the material parts of the Will are in the handwriting of the testator and it is signed by the testator. (Section 14-2503)

ARKANSAS
A Holographic Will is recognized as a valid Will where the entire Will and signature are in the handwriting of the testator. It must be established by 3 disinterested witnesses that the handwriting and signature are, in fact, that of the testator. (Section 28-25-104)

CALIFORNIA
A Holographic Will is recognized as a valid Will, whether or not witnessed, as long as the signature and material portions of the Will are in the testator’s own handwriting. A Holographic Will may be held to be invalid if it does not state the date of the execution and the date cannot be proven. A Holographic Will is also considered invalid if the testator lacked the required mental capacity to execute a Will. (Probate Code Section 6111)

COLORADO
A Holographic Will is recognized as valid, whether or not witnessed, if the signature and the material parts of the Will are in the handwriting of the testator.  (Section 15-11-502) A document that appears to have been intended to be a Will is also considered valid if it can be established by clear and convincing evidence that the decedent intended the document to be a Will. (Section 15-11-503)

CONNECTICUT
Connecticut does not recognize a Holographic Will executed in its state.  However, a Holographic Will that was properly executed in a state which allows such Wills is valid.

DELAWARE
A Holographic Will is not recognized as a valid Will by this state because it does not meet the requirements the state has set forth for executing a Will. (Section 12-202)

FLORIDA
Florida does not recognize a Holographic Will as a valid Will. (Section 732.502)

GEORGIA
A Holographic Will is not recognized as a valid Will in the state of Georgia.

HAWAII
Holographic Wills are not recognized as valid Wills in this state. If a holographic Will was properly executed in a state recognizing their validity, then such a Will may be admitted to probate in Hawaii. (Section 560:3-409)

IDAHO
Idaho does recognize a Holographic Will, whether witnessed or not, as long as the signature and material provisions are in the handwriting of the testator. (Section 15-2-503)

ILLINOIS
A Holographic Will is not recognized as a valid Will in this state.

INDIANA
Indiana does not have any state statutes which provide for Holographic Wills.

IOWA
Iowa does not recognize a Holographic Will because they are not executed in accordance with the laws on executing Wills.

KANSAS
Kansas does not recognize a Holographic Will as a valid Will.

KENTUCKY
Kentucky does recognize a Holographic Will as a valid Will. (Section 394.040)

LOUISIANA
Louisiana does recognize a Holographic Will if it is written by the testator and dated and signed by the testator. No other formalities are required. (Section 1588)

MAINE
Maine does recognize a Holographic Will, whether witnessed or not, as long as the signature and material provisions are in the handwriting of the testator. (Section 2-503)

MARYLAND
The Holographic Will recognized as a valid Will must be made by a person serving in the U.S. Armed Forces and made outside of the United States. However, this Will is considered void one year after discharge from the Armed Forces. (Section 4-103)

MASSACHUSETTS
Massachusetts does not recognize a Holographic Will as a valid Will.

MICHIGAN
Michigan will recognize a Holographic Will as valid if it is dated and the testator signed at the end of the Will. Material provisions of the Will must be in the testator’s handwriting. (Section 700.123)

MINNESOTA
Minnesota does not recognize a Holographic Will.

MISSISSIPPI
Mississippi does recognize a Holographic Will as a valid Will. No witnesses are required. (Section 91-5-1)

MISSOURI
Missouri state law makes no reference to Holographic Wills.

MONTANA
Montana does recognize a Holographic Will as a valid Will, whether or not witnessed, if the signature and material provisions are in the handwriting of the testator.

NEBRASKA
Nebraska does recognize a Holographic Will as a valid Will, however, it must have some indication of the date, either written or by some external evidence. If the holographic Will is the only writing found, it will be considered valid. (Section 30-2328)

NEVADA
Nevada does recognize a Holographic Will as a valid Will if the document is entirely written, dated and signed in the testator’s handwriting. There is no particular form required other than it be entirely written in the hand of the testator. It can be made either within or outside of Nevada and there is no requirement that it be witnessed. (Section 133.030,090,190)

NEW HAMPSHIRE
New Hampshire does not recognize a Holographic Will as a valid Will.

NEW JERSEY
New Jersey recognizes a Holographic Will as a valid Will, whether or not it is witnessed, if the signature and material provisions are in the handwriting of the testator.  (Title 3B Chapter 3 Section 3)

NEW MEXICO
New Mexico does not recognize a Holographic Will as a valid Will.

NEW YORK
A Holographic Will is considered a valid Will only in the limited circumstance where it is made by certain members of the U.S. armed forces while serving in a conflict or by another person who serves with or accompanies the member of the armed forces.  Such a Will must be entirely in the handwriting of the testator to be valid. Such a Will becomes invalid after 1 year after he or she ceases serving with the armed forces. (NY Law EPTA Section 3-2.2)

NORTH CAROLINA
North Carolina does recognize a Holographic Will as a valid Will as long as it is written entirely in the handwriting of the testator. Some immaterial printed matter will not invalidate the Will. This Will must be signed by the testator in his or her own handwriting and no witnesses are necessary. The Will must also have been found after the testator’s death, among the valuables, in a safe deposit box, or with a person, where it appears it was intended to be kept for safe keeping. (Section 31-3.4) Testimony is required to admit the Will into probate to prove the above requirements.

NORTH DAKOTA
A Will which does not comply with the formal Will execution provisions will be considered a valid Will, whether or not witnessed, if the signature and material provisions are in the handwriting of the testator. (Uniform probate code section 2-503)

OHIO
Ohio does not recognize a Holographic Will as a valid Will. A Will must be executed and witnessed in conformity with Section 2107.03.

OKLAHOMA
Oklahoma does recognize a Holographic Will as a valid Will. (Section 84-54)

OREGON
Oregon does not recognize a Holographic Will as a valid Will.

PENNSYLVANIA
Pennsylvania does recognize a Holographic Will as a valid Will.

RHODE ISLAND
Rhode Island does not recognize a Holographic Will as a valid Will.

SOUTH CAROLINA
South Carolina does not recognize a Holographic Will as a valid Will. However, certain exceptions are made for Holographic Wills which are validly executed in a state which allows such Wills, or when an out-of-state probate proceeding is involved.  (Section 62-2-303, 408, 502, 505)

SOUTH DAKOTA
South Dakota does recognize a Holographic Will as a valid Will, whether it is made within or out of the state and whether or not it is witnessed, if the signature and material portions are in the testator’s handwriting. Intent that the document is the testator’s Will can be established by extrinsic evidence. (Section 29A-2-502)

TENNESSEE
Tennessee recognizes a Holographic Will as a valid Will. The Will is valid if it is in the testator’s handwriting, whether witnessed or not, but the testator’s handwriting must be proven by two witnesses. (Section 32-1-105)

TEXAS
Texas recognizes a Holographic Will as a valid Will. The Will must be entirely written by the testator, but is not required to be witnessed. It may be proven in one of two ways: The testator may attach an affidavit stating that this written instrument is his or her last Will and that he or she was competent to make the Will and that the Will has not been revoked. (Probate Code Section 60) If the testator does not self-prove the Will, then at the time of death it must be proved by the testimony of two witnesses as to the handwriting of the testator. (Probate Code Section 84)

UTAH
Utah recognizes a Holographic Will as a valid Will, whether or not it is witnessed, as long as the signature and material provisions of the Will are in the handwriting of the testator. (Section 75-2-503)

VERMONT
Vermont does not recognize a Holographic Will as a valid Will since it does not meet the execution requirements set forth by state law. (Section 14-5)

VIRGINIA
Virginia recognizes a Holographic Will as a valid Will as long as the Will is written entirely in the handwriting of the testator. It is not necessary that it be acknowledged or witnessed. At time of death, the proof of handwriting must be established by at least two disinterested witnesses. (Section 64.1-49)

WASHINGTON
Washington does not recognize a Holographic Will as a valid Will since it is not executed according to the formalities set forth by state law. However, the state may recognize a Holographic Will that was executed in states where it was deemed legally executed at the time. (Section 11.12.020)

WEST VIRGINIA
West Virginia does recognize a Holographic Will as a valid Will. The Will must be entirely in the writing of the testator and be signed by the testator. The Will must evidence an intent that the document is to act as a Will, and the signature must be intended as a signature to a Will. No acknowledgment or witnesses are necessary.  (Ch. 41, Art. 1, Section 3)

WISCONSIN
Wisconsin does not recognize a Holographic Will because it is not executed according to state law. However, a Holographic Will executed in a state where it was considered valid at the time will be recognized. (Section 853.05)

WYOMING
Wyoming does recognize a Holographic Will as a valid Will and there is no requirement that it be witnessed. (Section 2-6-113)

Believe it or not, despite having a Son in law that works entirely in estate planning, my in-laws have a holographic will which is actually enforceable in PA, which is where they are domiciled.

Do you have a holographic Will? Did you just learn that it isn’t admissible in court?

10 Responses to Is your Hand Written Will Unenforceable? Does your State Recognize Holographic Wills?

  1. NONE OF THE FOLLOWING IS MEANT TO BE LEGAL ADVICE.

    As a Texas probate attorney if my client’s loved one was going to “save” money by not using an attorney the safest way is probably by writing a holographic Will. I am pretty much guaranteed to get a handwritten Will accepted by the Probate Court as long as the family can find two people who can identify the handwriting.

    It will probably have “issues”, but it will get the named executor appointed and avoid most of the property passing by intestacy. The biggest reason (in my mind) to have a Will is to control who gets to receive my property.

    Most of the “kit” wills done by a layperson have drafting or signing errors. These naturally cost more money to fix when offered for probate. Some of the problems cannot be fixed.

    The more people with whom one has children, the more complicated the family relationships. Intestacy is the State’s definition of who receives your property after you die if you have no Will. If you do not like that definition, get a competent lawyer to prepare one for you.

    Like the old ad for a mechanic, you can pay a lawyer now or your family can pay a lawyer much more later.

    Even more important than your Will is having good well planned and prepared Powers of Attorney. Powers of attorney protect you, the Will is what you do when you love someone else.

  2. I didn’t know the term was Holographic will, but I was planning on doing the same thing. The thought of sitting with a lawyer and thinking about something so morbid really scares me. Well, since I’m a NYer there’s really nothing else I can do but to seek an attorney on this matter…

    What age would you recommend considering a Will? I’m 23, and I really don’t want to think about that until I have at least my first child…which is a ways out…

    • Currently, without a Will, in NY any asset not controlled by deed or contract (beneficiary status or payable upon death like many investment accounts) will pass up to your parents if you have no children and are not married.

      If that is ok with you then you probably don’t need a Will. That being said there may be other benefits for your heirs if you have a will – clear guidelines of what you want, cheaper administration process, etc.

  3. A deceased person died – in 1999 with a Holographic Will that lived in Idaho. No probate had taken place. Idaho has a 3 year Staute.
    can an attorney start a Probate process in 2007 in the State of Washington- 7yrs after the person was deceased due to Idaho has a Statue of 3yrs.
    The Deceased though lived in Idaho died just over the State Line in Washington…Can this be done to
    to file in Washington a Probate after being deceased since 1999…. and going on over 3yrs for the probate and now going after possessions of this person deceased 10yrs ago. Is this Valid?

  4. Mary,

    You are asking me about 2 states which I have never visited nevertheless studied their invidivual laws and procedures.
    1) Most of the time (and I have to say MOST) probate is done where the person was domiciled not where they died.
    2) I am not sure if your assumption of a 3 year SOL (statute of limitations) in Idaho is correct. Do you have a statute that I can see or is that what you heard?
    3) and this is most worrysome for me…you are asking about a legal issue 2 years after you said probate was started? If you think something is up you need to see an attorney ASAP.

    I am sorry if this wasn’t a help, but I would recommend seeking Counsel as soon as you finish reading this comment, waiting even a day is a bad move since your chances to object get smaller if not already non-existant.
    .-= My Journey´s last blog ..How Can a QTIP help your Estate Plan? =-.

  5. I am looking at creating my first will. I am short on funds but feel that I should take this step. Please give me advice on how I should go about finding a good atterney and how much the normal cost for creating a will should be.
    Thanks!

  6. I live in Florida where a holographic will is not accepted however if I type something out in word and have two people sign it will this be accepted? I just got married 30 days ago and we really don’t have any major assets except for a house so was thinking something was better than nothing until we could afford a lawyer.

    • I am not sure the requirements to have a will executed in the State of Florida. But a couple things…
      if you own the house joint with rights of survivorship OR tenancy by the entirety (your deed will indicate it) then that would automatically pass to the surviving spouse. Same with beneficiary status accounts such as IRAs/401ks etc IF the beneficiary status is correct.

      Lastly, I understand money is tight, and I HATE doing it but before you start typing something up it may be more prudent to go to one of those online options. I am SURE my adsense popped up one of those ads lol.

      I hate those services but in your case it may be the right one.

  7. A will is a very important document that can cause a lot of discussion when not properly produced. I do agree with the importance of analyzing the requirements of each state when it comes to creating wills. Not doing so can cause all sorts of problems between family members. Money has that kind of effect on people.

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