Holographic Wills - and - Free Wills Clinic

San Antonio Express-News August 1, 2006 Holographic Will -and- Free Wills Clinic copyright 2006, Paul Premack
Dear Mr. Premack: I have made a holographic Will. I say it is acceptable in the State of Texas as such and does not require witnesses or notarization. My friend says it is not adequate. Who is right? Thank you, J.W. For a holographic Will to be valid, Texas law requires that it 1) be written entirely in your own handwriting, 2) contain the date on which it was written, and 3) be signed by you. Witnesses are not necessary. So you are correct that it is acceptable. Now I’ll quibble with words. Your friend is correct, as well, by saying that a holographic Will it is not adequate. By distinguishing between “acceptable” and “adequate” I mean to convey that although holographic wills are legally valid, they are not efficient and can cause problems. Consider these factors that make a holographic Will less reliable and potentially more expensive to administer than a formal Will: • If any part of the Will is not in your handwriting (for example, part is typed or preprinted) the Will is not valid. Beware of “fill in the blank” Will forms that ask only for your signature at the end without witnesses; they are neither valid as holographic Wills nor as formal Wills. • Holographic Wills may contain incorrect legal phrasing or incorrect use of words. The plain meaning of your words is not always the legal meaning that will be attached when your handwritten Will is interpreted by the court. For instance, you might think that leaving assets to your “bodily issue” means your biological children or grandchildren. It does not; the courts interpret “bodily issue” to include adopted children or grandchildren. • Legal shortcuts (to save time and money) are likely to be missing from a holographic Will. Consequently, probate is likely to take much more time and be more expensive. A formal Will requires a statement of your instructions (whether typed or handwritten) that is signed by you, dated, and signed by two witnesses in your presence and in the presence of each other. I did not mention notarization because a formal Will is acceptable without notarization (but is not adequate). The notarization happens on an attachment to the formal Will called a Self Proving Affidavit. In it, both you and the witnesses swear that the legal formalities required to create a Will were fulfilled. After your death, if the Will is presented to the Judge for probate, the affidavit is proof of the Will’s authenticity. Without the affidavit, those witnesses would have to testify, or people familiar with your handwriting would have to testify, that the Will is valid. A formal Will is likely to free your Executor from court supervision (by allowing “independent probate”) and to excuse your Executor from posting a fidelity bond. Unless you waive those requirements in your Will, they will be imposed and will add to the cost and the complexity of the administration of your estate. The bottom line is that you may save a few dollars by making your own handwritten Will now – but those savings will be far overshadowed by the extra cost and time it takes to administer your estate under that Will. You are far better off to have your lawyer draw up a formal Will. If you are low income and cannot pay a lawyer, seek help from the Wills Clinic sponsored by the San Antonio Bar Foundation and the Bexar County Women’s Bar Foundation (for information, call 210-271-9846 [this is a new phone number valid as of 2007]).
Prior Week: Wills with CPSA Next Week: Has Father Changed His Will?
Disclaimer: This column answers a specific legal question asked by an individual in Texas. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney. You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.