Problems With Holographic Wills

December 10, 2018 | Sam Morris

Problems with Holographic Wills:

A holographic will is a will written entirely in the handwriting of the testator.  So long as it complies with North Carolina law, a holographic will is a valid legal document.  Nonetheless, many estate planning pitfalls arise when those unfamiliar with the probate process attempt to draft their own testamentary documents.

First, the terms of a holographic will are often ambiguous.  Though a testator may use a word with a certain meaning in mind, the failure to make such a meaning explicit and clear can create probate problems.  For instance, suppose a holographic will leaves the testator’s estate to his favorite nephew, without naming that nephew, or to “John,” when there are two or more family members named John? 

Second, holographic wills often fail to dispose of a testator’s entire estate, thus resulting in the omitted portion of the estate passing under another provision of the will or the intestacy statutes.  For example, suppose a testator leaves his “1999 Ford F150” to his nephew.  When testator dies, he no longer owns the 1999 Ford F150, but owns a Chevrolet pickup truck.  Depending upon how his he drafted his holographic will, the truck could either pass by the residuary clause (which is unlikely in a holographic will) or under our intestacy statutes.  Either way, the testator’s intent isn’t likely carried out. 

Lastly, holographic wills often fail to name an executor or name contingent beneficiaries.  What happens if the person you want to inherit your property predeceases you?  Who do you want to oversee the handling of your estate?  These are all critical questions that holographic wills ordinarily do not address.  An estate planning attorney should address these and other issues with you to ensure your intent is carried out.  Remember, the goal of an estate plan is to pass your estate in accordance with your wishes.  Do not allow easily avoidable estate planning pitfalls frustrate that goal. 

 

 

 

Samuel K. Morris
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