Updated: Mar 9, 2021
A purely holographic will is one that is handwritten and has no witness signatures. In Tennessee, the material provisions and signature must be in the testator’s handwriting, and before the will may be entered into probate, two witnesses must testify to the handwriting and signature of the instrument.
At first glance, a holographic will may seem like a great idea; you don’t need to pay an attorney! However, it is important to understand both the benefits and the pitfalls of having a holographic will.
Pros of Holographic Wills
The Cost: You do not have to hire an attorney to draft the will for you. There is no cost for you to write your own holographic will.
The Ease: Holographic wills are quick and easy to draft. The only requirements are the material provisions be in the handwriting of the testator, and that it be signed by the testator. You don’t even need to date it.
The Privacy: Holographic wills don’t need to be witnessed or notarized. You can execute the Will alone in your own home. No one even has to know that the will exists until after your death. This can alleviate things like family pressure and relatives who are unhappy to be left out.
Cons of Holographic Wills
A holographic will may not distribute all your estate the way that you intend. Depending on the way a provision is worded, even a single word that is left out or improperly used can cause the provision to have a different meaning or lead to ambiguity as to the the testator’s intent.
A holographic will may not distribute your entire estate. If anything is left out, or you have more assets or property at the time of your death than when you wrote the holographic will, some of your estate could end up passing intestate.
Holographic wills are much more easily and commonly contested. It may seem convenient that no witnesses are required, but that also means that there will no witnesses who can testify to testamentary capacity, intent, fraud, or duress. Will contests can be costly and time consuming.
The handwriting may be difficult to read. This may seem like a trivial concern, but if the judge or personal representative cannot decipher your handwriting, all or part of the holographic will may be thrown out. In some states, messy handwriting or poor grammar can be an argument for lack of capacity.
Holographic wills are not valid in every state. Even in states which do recognize them, the requirements are different. Some states only accept holographic wills executed within their state. Other states accept holographic wills which meet the statutory requirements of the state they were executed in. Even within states which recognize the validity of holographic wills, they may have different requirements and formalities. If you executed a holographic will which met all the requirements in Tennessee, then moved to Florida, that holographic will would not be valid, because Florida requires that two people witness you sign. New York narrowly limits valid holographic wills to those where the Testator is serving in active military duty during an armed conflict or a mariner at sea, and then then, the will is only valid for one year from the time of discharge of service. In New Hampshire, holographic wills are not recognized in any situation.
A holographic will is better than having no will at all. They may be appropriate for those who have simple estates, a small number of assets, and one or two heirs. If you have specific wishes as to how your estate will be distributed, you want to take every possible step to ensure that your wishes will be correctly carried out. It is always better to consult an experienced estate planning attorney.
About the Company:
Mason & Associates, formerly known as Heritage Law Group, PLLC, is a boutique Estate Planning and Elder Law firm assisting residents in Tennessee and Kentucky, with offices in Gallatin and Nashville, Tennessee. We are dedicated to providing client-centered, professional legal services that are individualized through one-on-one consultations. We delight in empowering our clients and community through education and providing specialized resources. Our integrity-driven team will help you protect your legacy while delivering outstanding quality at a reasonable cost. Your Legacy Is Our Priority™
Jake Mason, J.D., LL.M. (Elder Law & Estate Planning), CELA, EPLS, is the Owner of Mason & Associates Law Firm in Gallatin, Tennessee. He is Certified as an Elder Law Attorney with the National Elder Law Foundation, is board-certified in Estate Planning and Probate by The Estate Law Specialist Board, Inc., of the National Association of Estate Planners & Councils, is accredited by the United States Department of Veterans Affairs, and is licensed in Kentucky and Tennessee. Mason is the only attorney in Tennessee or Kentucky with Board-Certifications in both Elder Law & Estate Planning. Contact us to schedule a consultation via phone, in-office, or video conference at email@example.com or Gallatin (615) 989-7054 | Nashville (615) 619-2791.
1.T.C.A. § 32-1-105 (2016), 2.http://lexingtonkylawfirm.com/legal-services/wills-trusts-and-estate-planning/wills/holographic-will/, 3.Florida Statute § 732.502(2)