behind the curtain – a guide to handwritten wills

I like magic. By magic I mean the kind performed, not Harry Potter (though I like him, too). I’m not yet even a hobbyist,  but I love to watch. I particularly love the work of Penn and Teller and those like them, who know their craft so well they will explain more common tricks.

In that theme, here is my first aid to do-it-yourself estate planners. I have mentioned handwritten wills, now I’ll give some guidelines to how to write one.

The holographic will is not fanciful science fiction – it is the legal term for a will written completely in the handwriting of the testator. Because it is all in one hand, the holographic will does not require any witnesses. For a decent novel as to what trouble that fact alone can produce, see John Grisham’s The Testament. The Will has few if any magic words required, but here’s a template:

1.  “This is my last will and testament.” – Not actually necessary, but definitely helpful. A will is ultimately defined by whether its  content meets the requirements of the Statute of Wills, but a label will help everyone, especially non-legal friends and family, know what they are looking at. Also it makes clear this is an entire will vs. a codicil, which is an update to a portion of a prior will.

2. “I revoke all other wills and codicils.” – Again not necessary but useful. The last valid will properly executed is the proper will to probate and will supercede all others, whether this language is in it or not.

3. “Upon my death, give everything to my beloved wife Betty.” – This is really it. It contains a gift (everything) and a beneficiary (Betty) and is only meant to happen upon death. This sentence alone is a valid will if signed and entirely written by the testator.

4. “If she dies before me, give everything to my son, Sonny, and my daughter, Doris, in equal shares.” – Successor beneficiaries are always a good idea.

4.5. “My ingrate son, Cletus, gets nothing. He knows why.” – Of course this is not necessary, but excluding people who would otherwise inherit if there were no will is a very good reason to have one.

5. “I name my wife, Betty, to act as my executor. She should act independently and without bond. ” – It is not required that an executor be named in the will, but you are giving your loved ones direction which is usually very helpful.

6. “If Betty cannot act as my executor, I name my son, Doris <no one commented on this slip-up… it was a doozy… son is Sonny and daughter is Doris… proper identification is very important!> as my executor, also acting independently and without bond.” – Successor executors are a good thing, too.

7. “Signed on January 21, 2010.” – Not necessary, but helpful if there are multiple wills drafted over time in determining which is the latest.

8. <Signature> – 99% certain this is required – need to confirm that. I dimly remember that a holographic will may not need to be signed since it is all in the testator’s hand, but just sign it already!

That’s it. Please note that a properly drafted will by a competent attorney, like say, me, is a better and more comprehensive document than this. This is better than nothing. Also the will above is appropriate for an older couple with adult children. Minor children can neither receive property as beneficiaries under a will nor can they act as executor. A young couple needs to include guardianship and / or contingency trust information for their minor children.

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