Normally, in order to create a will, you would go see an attorney, have them draft it and then have it witnessed by two people. This must be done with the understanding that it was your will, i.e. you must have capacity. This is considered to be a “valid will” in the state of California as long as all provisions in the California Probate Code Section 6110 are met, as mentioned above.
A Probate Code Section 6110 “valid will” can be handwritten, it is just not as common and normally is not done properly since it is unlikely an attorney was involved. If a will does not meet the requirements of a valid will under Section 6110 then it could be considered to be a holographic will. The goal of creating a will is not to create a holographic will but to create a valid will, however; in absence of satisfying the requirements of a valid will you hope that you have a holographic one.
What are the requirements for a holographic will? The Probate Code Section 6111, states that, a holographic will is legal if its “material provisions” are in the testator’s own handwriting and the will is signed by the testator. The testator is the person that creates the will.
When is it understandable to not meet all of the requirements for a valid will and make a holographic will? I would say only in extreme circumstances, such as the following: you are in imminent danger of death, and you have not already made a will or wish to change a will; you are a soldier that has been injured on the battlefield, you are going into a serious surgery, you are lost in the wilderness and do not expect to survive, you are on an airplane about to crash, etc. I am sure that you can think of a few more.
Now you could be thinking, well I am not giving any attorneys my money and I am going to hand-write my will but there are some good reasons to see an attorney. In the end, the determination if a holographic will meets the requirements of Probate Code Section 6111, is up to the Judge and may not have the outcome that you intended.
A holographic will, as explained above, should not be your first plan of attack because there are common errors with them, such as lack of guardianship provisions, failure to dispose of all of the property, ademption, i.e. addressing special gifts to specific persons that are no longer part of the estate, as well as the following:
Failure to Include Material Provisions. First, you make have left something out such as contingent beneficiaries or executors. Contingent beneficiaries are the people that get your stuff if your primary beneficiaries, most likely your children are not around. If you fail to name the contingent beneficiaries then people that you did not want to get anything could get it or heirs that you have never met.
Executors are people that are in charge of collecting your assets and distributing them to beneficiaries in court. If you do not name any the first person that files a Petition for Probate that meets the requirements could be approved to be the executor of the estate by the Judge.
Ambiguity of the Will. Second, another common problem with holographic wills is ambiguity. You as creator of the will, i.e. the testator may have created a will that is clear to you but it may not be clear to to your children, other beneficiaries or the Judge what your exact intent was regarding certain clauses, etc. When there is confusion with the will it is up to the Judge how the will is interpreted and if extrinsic evidence could be allowed to make this determination. In the end you may be better off not having a will if everyone ends up fighting over what they thought you meant.
Handwritten wills do have their place but it is still a good idea to have a valid witnessed will or trust.
Coastal Pacific Law attorneys are experienced in estate and business planning, and can help with your will, trust, estate plan, trust administration, or probate administration. To schedule a complimentary consultation, call (619)786-6563, or fill out a Contact Request Form.
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.
Photo by Álvaro Serrano