February 9, 2017
As I speak to various groups and organizations about estate planning, I am periodically asked whether it is “legal” to simply handwrite a will. The short answer to this question is yes, but there are several precautions one should keep in mind before doing so.
NCGS Section 31-3.4 recognizes holographic wills and provides as follows:
(a) A holographic will is a will
(1) Written entirely in the handwriting of the testator but when all the words appearing on a paper in the handwriting of the testator are sufficient to constitute a valid holographic will, the fact that other words or printed matter appear thereon not in the handwriting of the testator, and not affecting the meaning of the words in such handwriting, shall not affect the validity of the will, and
(2) Subscribed by the testator, or with the testator’s name written in or on the will in the testator’s own handwriting, and
(3) Found after the testator’s death among the testator’s valuable papers or effects, or in a safe-deposit box or other safe place where it was deposited by the testator or under the testator’s authority, or in the possession or custody of some person with whom, or some firm or corporation with which, it was deposited by the testator or under the testator’s authority for safekeeping.
(b) No attesting witness to a holographic will is required.
In simple terms, you can create a handwritten document solely in your own handwriting and signed by you which can serve as your last will and testament. It’s important to emphasize that no portion of the document may be typewritten and no witnesses or notaries are required. This type of will is best reserved for simple general outright bequests of an individual’s entire estate, but as previously mentioned, there are drawbacks to this type of will.
So why would someone not want to draft a will in this manner? Wills are routinely challenged due to vagueness or other ambiguities. It is challenging enough for attorneys to draft wills and include sufficient language to demonstrate the testator’s (maker of the will) intent. A person who chooses to write a holographic will may fail to provide certain material language that could affect the distribution of assets. Such a person may fail to include certain property items or assets, and create confusion about who was to receive such items.
Another reason not to rush to writing a holographic will is that consultation with an experienced estate planning attorney may help you think through options available to you that you otherwise would not have considered. For example, would a living trust or testamentary trust be beneficial to you? Would a testamentary guardian for minor children be helpful? How should you provide for an Executor and contingent or successor Executors? What if any tax implications might exist? What’s the best way to preserve your will for safekeeping to ensure it’s located and used upon your death? Would other estate planning documents such as a general durable power of attorney, healthcare power of attorney, or living will be beneficial for your situation?
Clearly, creating a holographic will is not a decision one should rush off to make. With a minimal amount of time and relatively small cost, you can consult with an attorney to draft your will and have the peace of mind of knowing it was drafted correctly.
Give us a call at King Law for a free consultation in one of our convenient locations in Rutherfordton, Columbus, Hickory, Charlotte, Marion, Shelby, Gastonia, Greer, or Gaffney.