Law Office of Eric Holk

Certified Specialist in Estate Planning, Trust & Probate Law
The State Bar of California Board of Legal Specialization

60 Garden Court, Ste. 205
Monterey, CA 93940
Phone: 831-622-8808
Fax: 831-655-3660

WHY HOLOGRAPHIC WILLS ARE A BAD IDEA

If you write out a will entirely in your own handwriting (no typewritten or pre-printed portions) and sign and date it, this is what is known as a holographic will. Such wills are legal, so long as they comply with state law concerning holographic wills. The legal requirements for a valid holographic will can vary from state to state, so it is important to know what your state requires if you decide to do a holographic will. In California, a holographic will is legal if its “material provisions” are in the testator’s own handwriting and the will is signed by the testator [California Probate Code §§6110-6111]. (A “testator” is the person who makes the will.) A holographic will does not need to be witnessed; it does not even need to be dated, although not dating your will is a bad idea if it’s not the only will you have ever done.

Holographic wills appeal to many people who like the idea of saying exactly what they want to say in their wills and who feel their situations are simple enough that they don't need to spend the money for an attorney-drafted will or even a form will. However, even assuming that your will meets the legal requirements for a holographic will, there are good reasons not to do a holographic will. Most folks who write their own holographic wills don't know how to do it properly, and the potential for making costly mistakes is enormous. Only when the writer of a holographic will dies do those mistakes come to light, and then the grieving family is left to bear the burden of those mistakes.

Ambiguities and Errors. One of the most common problems with holographic wills is ambiguity. The intended meaning may have been clear to the testator, but those who are reading the will can be left with great confusion over the testator's true intentions.

One man's holographic will left everything to "Mother," without identifying the person by name. The man's mother survived him. So did his wife, whom he affectionately called "Mother" ever since their child was born. Which of these women was intended to receive his estate?

Another holographic will left the entire estate to the “University of Southern California, Los Angeles.” The estate was fairly sizeable, and both USC and UCLA asserted claims that they were the intended beneficiary. (It should be noted that gifts to local charities that are part of a national organization should be very specific and include the charity’s address; otherwise, the gift may well end up going to the national organization instead of being used locally.)

Other ambiguities can arise when the will refers to "my favorite cousin" without naming the person, or "my good friend, Bob," when there are two or more friends named Bob.

Ambiguities can also occur with respect to specific assets. If the will says, "I leave my car to my good friend, Carol Smith," does this mean the new Mercedes you just bought or the old Volkswagen you’ve had for years?

Errors can also create ambiguities. For example, one unmarried man had a small corporation that he wanted to leave to his good friends and long-time employees, so he allocated percentage ownership interests to six different people. In order to give his best friend majority control, he gave his friend a 51% interest, and gave smaller interests to each of the others. Unfortunately, when the total was added up, it came to 101%! To make matters worse, this testator had a falling out with one of the employees he had named, and he crossed that person's name out of the will without specifying anyone else to get that person's share of the company.

Failure to Dispose of the Entire Estate. Typically, holographic wills are written so that certain individuals are to receive certain specific assets. This is fine, so long as the will addresses everything it should. A problem arises when the will disposes of less than all of the estate. If the will gives away one's house, car, and bank accounts, but neglects to mention furniture and other personal property and the 500 shares of General Motors stock, there is a partial intestacy as to the assets not covered by the will. Such assets will then pass to surviving legal heirs as determined by the state intestacy statutes, the result of which may not be what the testator intended.

One woman wrote up a holographic will that dutifully listed some (but not all) of her assets and named someone to take care of her cats. However, the will failed to nominate an executor and did not say who should receive her estate, even though she had told a favorite niece that everything was to go to her. The estate ended up going to the woman’s surviving brother and sister, since they were the closest living relatives.

Most attorney-drafted and form wills contain what is referred to as a "residuary clause." This is a statement to the effect that "I leave the residue of my estate to …" whomever the testator specifies. "Residue" includes anything the testator owned at death that should have been covered in the will but wasn't specifically mentioned. It includes assets that the testator may have acquired only after the will was written. Most holographic wills fail to include a residuary clause, and this often causes problems. It may mean that part of the estate will pass to the person’s “heirs at law” under the rules of intestate succession (“intestate” means dying without a will, but there can be a “partial intestacy” if a will doesn’t properly distribute the entire estate).

One elderly gentleman wrote out specific bequests to numerous friends, certain family members, and charities, giving each one a specified dollar amount for a total of about $600,000. He even went so far as to state that if his estate was insufficient to fully fund all these bequests, then the amounts should be reduced proportionately. However, when he died, his estate ended up being worth about $1,150,000, and there was no direction as to who would get the “residue” – the amount over and above the specific bequest amounts. This resulted in a partial intestacy, and nearly half his estate ended up going to his nieces, nephews, and a couple of grandnieces, most of whom he had no relationship with and had not intended to benefit from his estate.

The Problem of “Ademption”. As noted above, many holographic wills leave certain assets to certain people. What often happens with holographic wills (and even sometimes with attorney-drafted wills that don’t get updated) is that assets specifically bequeathed in the will are no longer owned by the testator at the time of death. If an asset was supposed to be given to a specific beneficiary and that asset is no longer owned by the testator at the time of death, this is referred to as “ademption.” This means the intended beneficiary may well be out of luck and may not get anything from the estate if the “adeemed” bequest was the only thing they were given. Many people give their house to someone, but sell the house before they die. Some folks leave specific bank accounts or stocks to someone, but change banks or sell the stocks. If the will doesn’t get updated, some intended beneficiaries may get nothing.

Failure to Name Contingent Beneficiaries. The persons you name in your will to receive your assets are called "beneficiaries." A common error in holographic wills is that the testator fails to anticipate the possibility that a named beneficiary might die before the testator. If the testator does not name a contingent or alternate beneficiary and the named beneficiary predeceases the testator, the gift to the named beneficiary will "lapse," meaning it will pass according to the laws of intestate succession (unless there is a residuary clause in the will). For example, if you leave part of your estate to one of your children, you don’t expect the child to die first; but if that did happen, you may want that child’s share of your estate to go to his or her children. If you don’t put the proper provisions in your will, those grandchildren may get nothing of what their parent was to receive.

Failure to Name an Executor. Typically, those who write their own holographic wills focus mainly on who will get what when they die, but they neglect to nominate an executor who will see to it that their wishes are properly carried out. If no executor has been named in the will, the court generally must appoint an "administrator" to perform the duties of the executor. The person appointed by the court may or may not be the person the testator would have chosen.

Even in holographic wills where an executor is named, the testators typically neglect to waive the requirement of a bond. Normally, an executor (or administrator) must post a surety bond with the court as a form of insurance to protect the beneficiaries of the estate in the event the executor should abscond with or grossly mismanage the assets. A bond costs money, and this cost is normally borne by the estate. A testator who has implicit trust in his or her named executor may prefer to waive the bond requirement by so stating in the will, thereby avoiding an unnecessary expense.

Failure to Address Special Situations. It may be that a named beneficiary is disabled and receiving government benefits that would be adversely affected by a direct inheritance. Or maybe a beneficiary has a substance abuse or gambling problem, or some other circumstance that would make an outright inheritance a bad idea. Or maybe the beneficiary is a minor (under 18). It may be that some of your intended beneficiaries should receive their inheritance in a trust of some kind, rather than an outright distribution that could have unintended consequences. A holographic will is simply not appropriate in such situations.

Failure to Name Guardians. For testators with minor children, their wills should include the carefully considered nomination of guardians for the children in the event both parents are deceased before the children reach adulthood. This can be critically important, yet it is often overlooked in holographic wills. If the parent fails to name a guardian, the court must select and appoint someone. Often the judge will name the closest living relative, who may be the last person you would have wanted to get custody of your children.

If you still want to do a holographic will, that is your legal right. But consider the risks to your loved ones. If saving money is your primary motivation, be aware that the future cost to your intended beneficiaries may be far greater than the money you saved by doing it yourself.

 

60 Garden Court Suite 205
Monterey, CA 93940
ph: 831-622-8808
fax: 831-655-3660
office@trusts-etc.com

Information is copyrighted by Eric N. Holk, 2012.

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