Holographic Wills in California

Can I Handwrite My Own Will?

California is one of 26 states which allows the creation of holographic wills. “Holographic” simply means a document wholly written by the hand of its author. A holographic will is a writing signed by the testator (the creator of the will) which contains its material provisions in the testator’s handwriting. Unlike a typical statutory will under Probate Code §6110, a holographic will does not need to be witnessed or dated. To put it simply, a holographic will is a handwritten will signed by its creator.

What are The Requirements of a Valid Holographic Will?

Probate Code §6111(a) governs the creation of holographic wills in California. Under Probate Code §6111(a), a holographic will must be: 1. Signed by the testator and 2. Its material provisions must be in the testator’s handwriting. The testator may sign the will anywhere on the document, so long as the signature is made with the intent to authenticate the will. The second requirement, that material provisions be handwritten, grants the creator of the will some flexibility in drafting the document. Probate Code §6111(c) allows for a testator to handwrite provisions of a will in a pre-created printed will form. Thus, a “fill in the blank” will form, with material provisions handwritten by the testator, will meet the requirements of a holographic will under Probate Code 6111(a). 

Why Create a Holographic Will?

Holographic wills allow people who may be pressed for time to create a valid estate planning document in a pinch. The ability to create your own, handwritten will grants you an option to plan in situations where you are unable to contact an attorney or draft a formal will. Holographic wills should be considered a “plan b” to formal estate planning. For example, someone about to undergo invasive surgery may want to create a holographic will before the surgery if there is no time to put a formal estate plan in place. However, as discussed below, the potential complications that may arise with a holographic will make it an inferior substitute to a formal estate plan.

Issues with Holographic Wills

There are many potential issues that arise with holographic wills.

1. Dates and Inconsistencies: Because there is no requirement to date a holographic will, issues may arise if multiple, inconsistent wills are in the testator’s possession upon their death. Under Probate Code §6111(b)(1), if multiple inconsistent wills exist, the court will deem the holographic will invalid to the extent of the inconsistency, unless it can be shown that the holographic will was executed after the other will. For example, if a will dated January 1, 2008, exists and another inconsistent, undated holographic will exists, the court will have to determine the order in which the wills were created. This could lead to delays in probate or even invalidation of the wrong will. It is important that a holographic will be dated, to avoid confusion in the event that subsequent or pre-existing wills are inconsistent.
2. What is a “Material Provision”?: Disputes may arise over what is considered a material provision under Probate Code §6111(a). It must be clear that the handwritten document is intended to be a will, and not simply instructions to an attorney or the testator’s handwritten notes on a document. If there is dispute over how the handwritten provisions were intended to operate, the court may invalidate the provisions. Holographic wills should be crystal clear in their intent, stating that the document or provisions are meant to act as a will.
3. Unfamiliarity With Relevant Law: It is often the case that the creator of a holographic will has decided to create their own estate plan, without the assistance of an experienced attorney. In these instances, the drafter may not have the knowledge or experience to include all of the necessary provisions to properly distribute the estate. This could lead to inconsistencies between the creator’s intent and the actual distribution of the estate. 
4. Lack of Capacity Safeguards: Typical wills require that two uninterested witnesses sign the document when the testator executes the will. This formal requirement is intended to confirm that you had the requisite capacity to create the will at the time of execution and that you were not under external pressure to execute the will. Because a holographic will does not have a witness requirement, these safeguards do not exist for a holographic will. Accordingly, under Probate Code §6111(b)(1), a holographic will may be invalidated if it is shown the testator lacked the requisite capacity at any time the holographic will may have been executed.
5. Probate: Even if the holographic will is clear in its intent and valid in the eyes of the court, it still must pass through probate. Probate in California can be a time-consuming, expensive process. Probate can be avoided through alternative estate planning mechanisms such as a trust. The issue of probate is inherent in all wills, holographic or not.

While holographic wills can provide a valid estate planning option in certain situations, it is important to consider the potential issues that may arise with these types of wills. From inconsistencies and disputes over material provisions to a lack of capacity safeguards and the possibility of an expensive probate process, holographic wills should be considered a “plan b” to formal estate planning. Instead of taking the risk of creating a holographic will on your own, it is highly recommended to consult with the Trusts and Estate Planning Team at Naimish & Lewis, APC. We will be able to provide the knowledge, experience, and expertise necessary to ensure that your estate plan is thorough, consistent, and in line with your intent. By working with our Trusts and Estate Planning Team, you can have peace of mind knowing that your estate will be handled in the best way possible.