Speak with attorneys across the country, and you will likely hear the same advice: most people over the age of 18 should have a will. Without one, state statutes of descent and distribution step in to govern the allocation of assets to survivors. Handwritten wills, also known as holographic wills, are legal and binding in many states. However, each state defines what is acceptable within its boundaries.
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Handwritten wills are an option in some cases, but they are not mandatory. In fact, an improperly executed handwritten will could be declared invalid. Laws vary by state, but one of the most common requirements for a handwritten will is that it must be entirely written by the person's own hand. A handwritten will written by anyone besides the testator may be invalidated no matter how many witnesses have signed the document. Future typewritten additions, changes or codicils to a handwritten will may not be accepted. A holographic will should not contain a mixture of handwritten and typed words, explains the American Bar Association.
Certain situations could make a handwritten will necessary, as long as that state recognizes it as valid. If a person is experiencing the threat of imminent death and doesn't have a will, he may choose to express in writing how he wants his property distributed. In other cases, a handwritten will can help cover the time period before a formal document is prepared. However, some testators may choose to prepare a handwritten will for personal reasons.
Proving Handwriting and Signatures
Proving the handwriting confirms that the will was written by the testator. In Tennessee, the signature and handwriting of the testator must be proved, or confirmed, by at least two witnesses who must sign their names in the presence of the testator and in the presence of each other, explains the Nashville Bar Association. Proving handwriting protects the testator from forgeries or additions made by another person at a later date and expedites the probate process. Having the will notarized does not always negate the need for two witnesses, and some states will invalidate the will entirely if it was not properly executed according to that state's laws. Some states accept a handwritten will without signatures, but many will not. Texas law states that a handwritten will may be written on anything as long as it is entirely in the testator's own handwriting, and there is no signature or witness requirement. Other states have different rules.
In most states, a properly executed handwritten will cannot revoke or supersede an existing typewritten will, even under circumstances of imminent death. If a previous typewritten will exists, destroying it by burning or tearing before writing a new handwritten will should suffice. Because no will is a valid legal document until after the testator's death, it can be changed or destroyed by the testator at any time during her life.
References & Resources
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