California law defines a holographic will as “a Will that is handwritten, dated and signed by the person writing the Will.” That may be an easy solution to writing a will, but there are some elements that must be proven to the probate court for the will to be valid.
There are pros and cons to a holographic will:
Pros: Some people may choose to write their own will because they think they do not have enough assets to have an attorney prepare one for them. It is easy to do. They write the will in their own home whenever they feel they have time for it.
There is no expense since the testator, the one who is writing the will, only needs a pen and some paper. It can be a private undertaking, inspiring the testator to provide details about why they chose to leave certain items or money to a specific heir.
There are no irksome requirements. All that is needed is a pen, some paper, and hopefully, a witness.
Cons: It is easier for someone who feels they were wrongfully left out of the will to challenge the will’s validity. This may cause the beneficiaries of the estate to incur expenses by needing to present witnesses to the probate court who can testify as to the intent of the testator being consistent with the terms of the holographic will.
Problems may arise if the holographic will is inconsistent with the provisions of another will. The heirs will have to prove the dates of the execution of each will and the one that was most recently written will be the one that is valid.
Even if not witnessed, if the signature and material provisions of the will are in the handwriting of the testator, and the will is dated, the holographic will is valid.
The law allows extrinsic evidence to be presented to prove the intent of the testator, or the meaning of the will if it is unclear.
For more information on estate planning in general and preparing a will, contact the Law Office of Charles D. Stark. The office is in Santa Rosa and Attorney Stark serves all those in Sonoma County.