What is a Holographic Will in California?
If you are dealing with probate you may have heard this phrase. And if you’ve never dealt with probate, when you hear the phrase holographic you’re probably thinking this is something three-dimensional. Maybe it’s got rainbow colors? Well, it’s nothing like that.
It’s a really really old term that gets used in California for a written will and there are only a few requirements for a holographic will to be a valid will.
- First, the material terms of the will have to be in the decedent’s handwriting. In other words, the person who passed away has to write this thing out. This doesn’t mean that every last letter in the will has to be in their own handwriting but the material terms do so. If they’ve done something like they’ve gotten some kind of pre-printed form but they filled out more or less everything on it, including how they want things to pass that will likely pass muster as the material terms of the will
- The second requirement is a decedent must sign the will. Here’s the thing about signing it: people who actually draft their own wills often times are not thinking entirely clearly. They’re certainly not doing good planning. It’s not all that unusual in my experience to find a signature an odd place: it may be at the top of the page. Or all the terms may be on the front but the signature may be on the back. It doesn’t really matter. As long as the signature is there that’s good enough. That will qualify as a holographic will and people are used to hearing that wills in California have to have two witnesses. That is not a requirement for a holographic will. In fact, it doesn’t matter if it’s witnessed at all. What I just told you about the material provisions being in the decedent’s handwriting and the decedent signing it that is all that’s required.
People often ask, “But what about dating don’t you have to date a will?”
Well it’s a good idea including for holographic wills, but it’s not absolutely required. But if the holographic will is not dated, there are some potential problems. The first of them is if there’s another will of the decedent (the person who passed away) and they have some will from some other time that is datated so we know when it’s from. And then we’ve got an undated holographic will. That first will is actually going to govern unless there’s some other way of proving that the holographic will came later. So if we’ve go that sort of competition without independent proof, it’s the other will that’s going to prevail.
Here’s the other thing that comes up with undated wills: we find out that the person who died at some point before their death became mentally incompetent.
Well, if you’re mentally incompetent then any will that you create is an invalid will. If you have an undated holographic will and somebody’s gonna have to offer proof about when it was actually created because if there’s even the possibility that it was created during a time that the decedent was mentally incompetent, the will will be found to be invalid (assuming that there’s a will contest) unless, there’s some kind of independent proof that the holographic will was created while the person was still mentally competent (or as people often say, when they still had their marbles). It’s not a legal term but I’m sure you understand what it is I’m talking about.
So if you’ve got a holographic will, not much is required nor to make it valid. But be aware if there’s a holographic will there are some potential problems with it. If you need to do a probate or have questions about completing a probate, do not hesitate to contact our office today or via phone at 888-443-6590.
AttorneyThe Grossman Law Firm, APC · 525 B Street, Suite 1500, San Diego, CA 92101 · (951) 523-8307