A last will and testament is the foundational element of any Houston estate plan. In a will, you can designate how you want your property distributed after your death, name an executor or personal representative who will oversee your estate, and name a guardian for any minor children. While Texas probate law allows for the use of holographic or handwritten wills, these documents present some serious concerns. At the Houston estate planning law firm of McCulloch & Miller, PLLC, we help families ensure that their existing estate planning documents are not only legally valid but that they will effectively carry out our clients’ intentions.What is a Holographic Will?
Simply put, a holographic will is a last will and testament that is handwritten by the testator. Holographic wills are often used in emergency situations when there may not be time to consult with an estate planning attorney.
To be legally valid, a holographic will must be entirely in your own handwriting. You must also sign the will yourself. However, unlike a traditional will, there is no requirement that anyone witness or sign a holographic will. Any will, including a holographic will, must be executed when the testator (the person drafting the will) is of sound mind. This is referred to as “testamentary capacity.” Similarly, a handwritten will must express a “testamentary nature,” which refers to the drafter’s intent to make an irrevocable gift upon their death.Potential Problems with Holographic Wills
While Texas allows for holographic wills, they open the door to several problems. For example, a holographic will is always more difficult to probate because it requires additional witnesses to testify in a probate hearing than would be required with a properly done “self-proving” will.
Also, most testators do not have a detailed knowledge of the requirements of a will in Texas. Thus, a handwritten will may not use the correct terminology or contain contradictory terms. This can lead to ambiguities in the document, which may require a court to “fill in the gaps.”
Additionally, because you do not technically need to date a handwritten will and there is no witness requirement, it means that no one else can testify to whether you possessed the necessary testamentary capacity and testamentary intent when you executed the document. As a result, holographic wills tend to result in a higher rate of will contests.
A will contest occurs when someone challenges the validity of a will presented to the probate court. For example, the following are common reasons why a party may contest a will:
- The testator lacked testamentary capacity;
- The will was not executed properly;
- The testator was unduly influenced when drafting their will; and
- Someone fraudulently induced the testator in drafting the will.
For example, if a family member expects to receive an inheritance, they may challenge a will for any of these reasons, hoping to invalidate the will. If the court agrees and determines the will is not enforceable, it may result in all estate assets being distributed under the Texas intestate laws.
While holographic wills make sense in some situations, they are generally a temporary solution that should not be used outside a very specific context. Thus, if there is any possibility that someone may challenge your will, it is best to avoid a holographic will and to consult with an experienced Houston estate planning attorney.Are You Considering Replacing a Holographic Will?
If you currently have a handwritten will and want to ensure that your estate plan effectively addresses your desires, reach out to the dedicated Houston estate planning attorneys at McCulloch & Miller, PLLC.
At McCulloch & Miller, PLLC, our elder law and estate planning lawyers have extensive experience creating custom-tailored solutions for individuals and families from all economic backgrounds. We will work closely with you to develop an effective plan that you and your family can rely on for years to come.
To learn more, and to schedule a free consultation, you can reach McCulloch & Miller, PLLC, at 713-333-8900. You can also reach us through our online contact form.