holographic wills - are they legal in tennessee?
Is a Handwritten Will Valid?
Although they can be considered archaic, we still see holographic wills from time to time, so it pays to know how they work. In an earlier post, I told you what a will is. In short, it’s a document that you execute to direct the distribution of your estate after you die. There are several kinds of wills, but far and away the most common is a will typed by an attorney (or in a DIY program), signed by the person making the will and two witnesses, and sometimes notarized.
Even though they are rare, handwritten wills are valid in many states, including Tennessee, as long as they are executed in a manner prescribed by Tennessee law. They do have special requirements that differ from traditional wills, so the validity of a handwritten last will and testament can be tricky if you are unaccustomed to them.
As such, seeking legal advice before attempting to draft your own will can be crucial.
What is a "Holographic Will"?
A holographic (sometimes “olograph” or “holograph”) will is a paper writing made by the deceased person, where all of the material provisions of the will are in his or her own handwriting (No, it’s got nothing to do with futuristic projection technology). These were far more common before easily available typesetting and printing devices became the norm. Nowadays, holographic wills still turn up, but as our society moves further into the digital realm, they are becoming rarer and rarer.
Are they legal?
In short, yes; however, holographic wills have different requirements than “normal” wills, described above.
Requirements of a Holographic Will
Before the enactment of the Tennessee Execution of Wills Act, holographic wills had to be found among the testator’s (the person making the will) valuable papers or given to another person for safekeeping.
Further, it was required that the testator’s handwriting be known “generally by his acquaintances”, that the will be written entirely in the handwriting of the testator, and that the handwriting be proved by at least three credible witnesses.
However, after the Tennessee Execution of Wills Act, a holographic will no longer needs to be found among the testator’s papers, and it only needs to be proved by at least two credible people that the signature and material provisions of the will are in the handwriting of the testator.
Further, the testator (the person making the will) must subscribe their name to the will, or at least insert their name in some part of it.
In other words, the holographic will cannot simply be a handwritten document without any indication of who wrote it and still be valid.
What is the Difference Between a Simple Will and a Holographic Will?
The primary difference between an ordinary and holographic will is of course that a holographic will is completely handwritten by the testator, while a “simple” will follows the normal execution guidelines for wills in Tennessee.
While holographic wills and simple wills may be confused sometimes, they really are like apples and oranges. A holographic will is a specific type of will, while a simple will is more of a descriptor of the expected complexity of the will. There is no difference in the execution requirements of a simple will versus a complex will.
That said, a simple will and a holographic will likely distribute assets in a similar fashion. For example, for ease of drafting you may find “I bequeath all of my possessions to my wife, to hold in perpetuity,” or similar language in both a holographic will and a simple will.
On the other hand, more complex wills tend to have granular bequests, and have more specific beneficiaries, charities, and some even have testamentary trusts.
The bottom line is that the main difference between a holographic will and a simple will is the form it takes and the requirements for validity.
Why Making a Holographic Will May Not be the Best Idea
First of all, I can’t think of two separate people who are familiar with my handwriting, and I’m betting the same is true for most people, especially now that almost everything we do is digital. Therefore, it may be difficult for family or executors to locate two separate people (aside from handwriting experts) that can testify that a will was actually written and signed by you.
Another argument against holographic wills is the lack of expertise that laypeople have when drafting a will. Although Tennessee has no specifically required wording or form for wills, having a form and wording that is well-known and well-defined can make the probate process much smoother. In addition, an expert can help ask the right questions and give you guidance in your estate planning. This can be especially important if you have very specific wishes, a large estate, or many beneficiaries. Oftentimes, it’s also advisable to bring in a CPA or tax expert to give their advice on tax-advantaged planning.
Finally, enlisting an expert can help just by getting a second set of eyes on the paperwork. Looking for mistakes, offering suggestions, and ensuring that the execution of the will is legal and will stand up in probate after you’ve died.
So, the short answer is that yes, handwritten or holographic wills are legal, but unless you have no other options, it’s not advisable to commit your last wishes to a handwritten document.
What States Recognize Holographic Wills?
Not all states recognize holographic wills as valid. here is a list of those that do:
Alaska
Arizona
Arkansas
California
Colorado
Hawaii
Idaho
Kentucky
Louisiana
Maine
Michigan
Mississippi
Montana
Nebraska
Nevada
New Jersey
North Carolina
North Dakota
Oklahoma
Pennsylvania
South Dakota
Tennessee
Texas
Utah
Virginia
West Virginia
Wisconsin
Wyoming
If you need to create a will, book a consultation with your Knoxville estate planning attorney today.
