When it comes to wills in Texas, there are two types that you need to be aware of. The first is a formal will, and the second is a holographic will. The difference between the two will be discussed in the introduction of today's blog post. The second half of today's blog post from the Law Office of Bryan Fagan will discuss how you need to draft a holographic will compared to a traditional, formal will that you may be more familiar with. While we're at it- why don't we talk a bit about what a holographic will is before we go any further?
What is a holographic will?
I bet you were already rolling your eyes at today's blog post. "Here's another lawyer blog post where the author assumes that we know exactly what he's talking about. Doesn't even both explain to us what he's talking about?" Well, hold on a second. I'm getting there. A holographic will is (usually) a handwritten document that is not witnessed by anyone and usually is not done with the assistance of an attorney. Picture the older man who lives in the middle of nowhere. He stays up just late enough to scratch out an essential will on a piece of paper one night and leaves the document on his kitchen table just in case—no lawyer, no witnesses, nothing fancy.
Compare this to a formal will. A formal will is likely what we are more familiar with. Typically, a formal will is typed out these days. Usually not a long hand but using software, a form builder, or a website. A formal will typically require two people over 14 to witness you signing the document. Please don't sign the document ahead of time, is what I'm telling you. Invite over a couple of people and have them physically watch you sign your will. That's what you need right there. Although formal wills are more traditional, holographic wills are becoming popular because they are more straightforward and can be done without the assistance of an attorney.
Everyone should have a will who is over the age of 18
All adults need a will. That's right- you read that correctly. Every human being living in the United States should have a will drafted, signed, and ready to go if you pass away. Not that you won't pass away at some point (hint: we all will). I mean that you should have a will if you pass away suddenly. At a certain point, all death is sudden. I am willing to be that relatively people could anticipate the exact moment in time that they were going to pass. Therefore: get a will before you don't have the opportunity.
Next, you may laugh at this, but some people operate under the belief that if they draft a will, that means they are going to die. Well, we already covered how we are all going to die. It's not as if drafting a will can quicken that process. Don't worry about dying if you draft a will. Worry about dying if you don't have a will if you ask me. We know how it can be to go through life and feel unprepared or not ready for what comes next. Drafting a will and completing the document is the definition of preparation.
That preparation is not intended to benefit you. Not to beat a dead horse (pun intended), but you won't be around once your will goes into effect. However- your loved ones and beneficiaries will be. They stand to benefit a great deal from the preparation you have put into drafting a will. Please don't allow your death to be a period where your family is more concerned about financial matters than they are about mourning your passing. It is possible that this could be the outcome for those closest to you if you do not put forth the effort to get a will drafted. Take the time and think about your family. Get your will drafted, and you don't have to think about it much after that.
Why may a holographic not be the best for you?
Plans are all good and well until something unforeseen occurs. In the world of drafting wills, the unforeseen frequently occurs when a mistake is made drafting the document or if a relative of yours attempts to challenge the validity of that will. These are circumstances where your best-laid plans may fall flat. In that case, the person named as the executor under the will must then hire an attorney and defend your intentions as laid out in the document. The person challenging the will must hire a lawyer to argue the opposite. Not exactly the situation that your family wants to find itself in after you've just passed away.
Here is probably the most obvious way your holographic could be challenged in probate court. Remember how we were talking about how one of the hallmarks of a holographic will is handwritten? Well, that will component comes into play when the will is admitted to probate. In that situation, someone you know must come into court and testify that the handwriting in the will is yours. Of course, the witnesses' testimony can be challenged. Then your executor would have to (your estate, actually) hire an expert witness to compare the handwriting in your will to examples of your handwriting in other places. It can be a mess.
The following circumstance that could result in a holographic will be challenged in court is the circumstances surrounding it being signed. The nice part of having two witnesses present when you are signing the will is that you have those folks to fall back on if something happens after you pass away where your will is challenged. This can be important because some people who may not be inheriting exactly what they want out of your will may have a problem will the document and won't be shy about raising a stink in the form of a challenge to your will.
They may try to argue that you were not in the right frame of mind to draft a will due to your age, mental state, or other consideration. Something was preventing you from thinking clearly, which led to your leaving them out of your will. Whether it's true or not, it could be enough to bring the validity of your holographic will into question. Without witnesses, then it becomes a lot trickier to prove that your will is valid, that you were of sound mind when it was drafted, and to be able to rebuff the challenges of your disinherited loved one.
Finally- what if a loved one argues that you were old, frail and that someone was in your ear trying to convince you to change your will while you were drafting it? Maybe the person wasn't physically in your ear while you were writing the will out by maybe, or she welcomed themselves into your life towards the end to try and convince you to disinherit someone in favor of them. That could be a plausible scenario depending on your age and mental state at the time of your passing.
If these scenarios don't give you pause as far as drafting a holographic will, then you should at least consider the following bits of information that I am about to provide you with. These couple tips may end up saving your estate a great deal of time, money, and effort. On the other hand, if you think that you may be changing your mind about going it alone as far as drafting a will, may I suggest contacting the Law Office of Bryan Fagan? We have estate planning attorneys available six days a week to consult with you about your circumstances and provide information that can assist you. Rather than guess that you are doing enough to protect your estate and provide for your family, why not go the extra mile, and get some guidance from experienced estate planning attorneys?
Make sure you specify the document at the top of the page.
You need to title the document. Many of us may remember that from a grade school language arts class. Others may have momentarily forgotten. If you are going to draft a will in your handwriting without a witness present, you need to title the document. Without that title, it can be argued that you were merely jotting down your thoughts to paper and not going through the trouble of drafting a real will. Something indicates that the document is intended to be your last will. Put your name in there somewhere (full name, that is), and now you are off to a good start.
What does the State of Texas have to say about holographic wills?
Whether yours is a traditional will or a holographic will, you must be at least 18 years old to have a will. This makes sense given that a will covers property, and you cannot legally own property until you reach 18 years of age. Alternatively, you could have a valid will if you are married or in the military if you are under 18 years old. Being of "sound mind" was what I mentioned earlier in today's blog post. It would help if you were of sound mind when your will was drafted to be valid. Here is what sound mind means.
Being of sound mind means that you must know what property you own, understand that the document you are creating is a will, and know that a will distributes property at the time of your death. Having to prove these things can be tricky without a witness or two.
Do you have any prior wills?
Things can change throughout a person's life. You may have created a will earlier in your life but have since seen changes in your family or circumstances. Maybe a spouse died. Maybe you have a relative you had a falling out with and no longer want them included in your will. Whatever the circumstances are, you should periodically review your will to ensure that it still comports with your wishes. If it does not, you should update the document. However, don't just cross through the old will and write in the language above the crossed-out portion.
Instead, you should draft a brand-new document from scratch. If you are handwriting your will, you can note at the beginning of the document that you are revoking all prior wills and declaring them invalid. This way, there can be no question of what will is valid if multiple wills are in your home, for example, after you pass away. It is easier to take the old wills and cut them up or run them through a paper shredder if you have one. That makes life a lot more straightforward and less likely for issues to arise in the future, deciding which will be the correct one.
What should the first line of your will look like?
We've already discussed how you need a title at the top of your will, but we have not discussed what the actual document needs to say. At least when it comes to the first line of your will, it should reflect who you are and what you are about to do. Your name, where you are drafting the document, and the date you are drafting are about all you probably need. Note that you are drafting the will to establish your wishes for your property after your passing. Use plain language. Don't try to get too fancy or legal-sounding. Something straightforward will work just fine in most cases.
Next, you should spell out who gets what out of your property. Be as accurate as you can in describing the property and naming the person who will receive the property under your will. For example, saying that your sister gets your car is not good enough likely. However, specifying that your sister Jane Smith should receive your 2017 Toyota Camry is better. Again- you want to leave as little to no doubt as possible. Don't get caught up in adding too much detail, or the will could end up being 20 pages long. Be specific and clear, and then move on.
Inevitably you will forget about some property when creating a will. For issues like this, you can include what is known as a residuary clause at the end of your will. The residuary clause allows you to sweep up any remaining property and promise it to a person or entity. For example, suppose you want your cousin Bill Hamilton to receive any remaining property not already mentioned in the body of your will. In that case, you can do so in a residuary clause. Remember the rule we spoke about a moment ago: be specific with the person's name even if you can't be that specific about the property you are leaving them.
Last, make sure to sign the document at the end once you have disposed of all your property. Number all the pages if there is more than one. Handwritten will tend to get a little messy and illegible. Make sure to try and be as clear as you can when writing one of these wills out.
The other thing that I would mention is that you should put the will in a place where it can be located when you pass away. Leaving it in a desk drawer or file cabinet makes a lot of sense. Stuffing it into a coffee can and burying it in your backyard does not. The will does no good to anyone if nobody can find it and knows about it. Do not assume that the holographic will is proper for you. Talk with an experienced probate and estate planning attorney to find out more. You may benefit from creating a traditional, formal will. Whatever you decide to do: be intentional and have a plan. Don't fall into handwriting your will because you have failed to prepare for an end-of-life scenario. Take steps to control what you can while you are still able to do so.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed probate and estate planning attorneys offer free of charge consultations six days a week in person, over the phone, and via video six days a week. We pride ourselves on serving southeast Texans just like yourself.
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