April 27, 2017
The whole family is cleaning out grandma’s old house, getting ready to put it on the market. Someone opens a desk drawer and finds a neatly written letter that’s signed by grandma. That letter is titled “My Last Legal Will and Testament.”
Does it count? Can her handwritten will really stand up in court?
Yes. Well, possibly.
A holographic will (also known as a homemade will or a handwritten will) can hold up in a court of law, but it must meet a few legal requirements to become valid.
In South Carolina, a holographic will can only be valid if it was written in a state that accepts holographic wills. So if you live in South Carolina and write a perfect handwritten will, it will not work because South Carolina is not a state that validates holographic wills. It only accepts a holographic will if it was written in a state that does find such wills valid.
One such state is North Carolina.
North Carolina requires that a holographic will be written entirely in the testator’s handwriting. Some states don’t carry this requirement. These more lenient laws will usually specify that the bequests and signature all be written in the testator’s handwriting.
Additionally, North Carolina requires a signature like almost every other legally binding contract. And the law requires that the document be found after the person’s death among the deceased’s valuable effects or papers.
So if there’s a will written entirely in the person’s handwriting and signed by that same person, and it’s found where it should be—and the will was written in North Carolina—both North and South Carolina will accept the document as valid.
This obviously exposes the document to a host of issues.
The courts in North Carolina will not presume the will is valid. Thus, the court will need to hear testimony and examine evidence to confirm that the will was written entirely in the testator’s handwriting. There will also be witnesses necessary to prove that the document was found after the time of death in a place described above.
The main takeaway from the of this court activity is money. Many folks will pen a handwritten will to save money on the front side of the equation. They don’t want to incur the expense of creating an estate plan, thinking if they just write it themselves, then there is more money to leave to their heirs.
As we’ve just shown, that may not be the case. Not only will the people submitting the will to the probate court incur expenses proving the will’s validity, there’s the possibility that the court will rule against it. That means the estate would likely be considered intestate—an estate without a will—and would have to follow the laws for distribution of the estate.
The best way to ensure your assets are protected and distributed in the manner you want is to have a thorough estate plan. You can take steps to limit the court’s involvement as much as possible for an easy transition.
If you or someone you know is thinking about an estate plan, call 1-888-748-KING to schedule an appoint with the attorneys at King Law. We’ll help you create a plan that best matches your wishes and helps your loved ones move on in peace.