In California, holographic wills are wills that are totally handwritten. There’s no typing. There’s no addition of pre-printed information. It is your wishes written in your handwriting. For California, holographic wills must meet certain elements. However, they’re also susceptible to several issues. In this post, you’ll learn about both the elements that must be met as well as the potential problems that may arise. It’s important for you to understand the elements as well as the problems so that you can make an educated decision as to whether a holographic will is right for you.
Related: Is California Probate Necessary If There Is a Will?
Information That Must Be Present in California Holographic Wills
To create a holographic will in California, you must have testamentary capacity. This means that you are competent, know what you own, and how you’d like your assets divided. Of course, this isn’t about an exact list of assets (although it certain helps!). It’s about ensuring that the will created by your own hand reflects your wishes and not the wishes of someone else.
When a holographic will is fully written in your handwriting (as well as signed by you), there’s no legal requirement to have the document witnessed. Your signature must be dated. This date helps the probate court know if they have the most recent copy of your will.
Name an executor and a back-up executor. While this isn’t a legal necessity, it helps make the process easier. The back-up executor will perform the duties if your original executor cannot or won’t fill the position. You should list your assets and name who should receive them. Make sure that you write this out legibly so that it is easier for the court and the executor of your estate to understanding. If you have minor children, name a guardian.
Related: Named as an Estate Administrator or Executor? Here’s What You Need to Know
The Most Common Problems with Holographic Wills
While holographic wills can certainly help you save money since you’re doing it yourself, they can also create serious problems when you die. The most common problems with handwriting your own will includes:
- Ambiguous terms. We’re sure you’ve heard the old saying, “Mean what you say and say what you mean.” If you want your wishes to be honored and make the probate process as easy as possible for your family, you’ll want to make sure that you use clear language. When things are ambiguous, it creates room for argument. Be painfully clear in your word choices. If you have three adult children and you’re only leaving an inheritance for two of them because you constantly help the third adult child with finances or other issues, be clear. List the names of the two adult children and what they will receive. Specifically mention that you’re not leaving the third adult child anything because of everything you’ve done to help them. Nicknames are another problem. Use full names for your heirs. Take Vice President Mike Pence as an example. The media reports that he calls his wife “Mother” as a nickname. His actual mother is Nancy Pence Fritsch. Imagine the confusion if he left something to “Mother” in a holographic will instead of listing his wife’s name or his mother’s name. Don’t leave things to your “favorite niece” or “favorite nephew” unless you actually include their legal name. The same could be said with friends and even charities. Use full legal names of individuals as well as entities. It also pertains to assets. If you’re leaving a vehicle to someone and you own more than one, which vehicle is it that you’re promising to this person?
- Errors. If you’re leaving a certain percentage of ownership to more than one person, make sure that the total doesn’t equal more than 100. Also, make sure that you review your holographic will on a regular basis to make sure that you haven’t left someone in it that you’ve decided you do not want to provide for. If it’s in the will at the time it is probated and the will is found valid, it is very hard to correct.
- You don’t list all of your assets in your estate. Make sure that you include all of your real estate, land, bank accounts, savings accounts, stocks, bonds, annuities, and personal possessions within the will. How real property is titled can also affect how it is probated.
- You don’t list an executor or heirs. Be clear on this: if you do not list an executor or mention who you want to receive your property, California probate court will follow the intestate laws. Your assets will go to your closest living relative in order of precedence (determined by the law).
- You don’t include a residual clause. A residual clause (also known as a residuary clause) is used to handle any of the assets you didn’t mention at the time you created the will. Maybe you didn’t own them at that time or maybe you forgot about them. If you don’t include this clause, the California probate court will (again) follow intestate laws to determine how to dispose of those items.
- You don’t update the will on a regular basis. Updating any will (including holographic wills) is important because it documents changes in your life. If you write a will and promise a three carat diamond necklace to your niece that you own and you later sell that necklace, your will would need to be updated since that asset is no longer part of your estate. Without these important updates, your loved ones may be left with nothing.
Get Help from an Experienced Estate Planning Lawyer Before You Write Your Will
If you’re still convinced that you want to write your own will, you should get help from an experienced estate planning lawyer. They can help you by giving you information about your specific situation and what you should remember to include. This can be very beneficial for your family and the probate court when it comes to honoring your wishes.