Hypothetical client: Nancy Sample is a single woman in quarantine. She does not currently have an estate plan in place (e.g., Will, power of attorney, disability planning documents).
She calls you and says that she’s heard that Texas allows for handwritten Wills. Is a handwritten Will right for her? What are the pros and the cons?
Does Texas Allow Handwritten (Holographic) Wills?
Yes. See Texas Estates Code Sections 251.051 and 251.052.
The general rule is that a valid Texas Will must be:
- In writing
- Signed by the person making the Will (Testator)
- Signed by two witnesses in the presence of the person making the Will
However, the requirement for two witnesses is removed if the handwriting is solely in the handwriting of the person making the Will.
The Case of Farmer Dean
Here is a test case:
Dean owns an enormous farm that spans many acres. Early one morning he is trapped under his tractor. Realizing that no one will find him before he succumbs to his injuries, he writes the following on the side of his tractor in blood:
I leave everything to my wife. Farmer Dean.
Is this a valid holographic Will?
In this court case, the court found that the Will was valid. The Will was written on the side of the tractor and the court decided that Farmer Dean’s name constituted a signature.
Farmer Dean’s wife was able to produce witnesses who could testify that the writing was indeed Farmer Dean’s handwriting.
Do You Have a Holographic Will Template?
Here is a holographic Will template.
Will of Susan Sample.
I revoke all prior Wills.
I name Fred Sample as Independent Executor of my estate without bond.
I leave all of my property to my husband, Fred Sample. Otherwise, to my children in equal shares.
Signed on January 1, 2020 by Susan Sample.
The Will must be solely in the handwriting of Susan Sample.
Susan may want to write the Will in blue ink to delineate the original from a copy.
Susan should keep the Will in a safe place easily found by her Executor.
Are There Any Drawbacks to a Holographic Will?
As they say, the devil is in the details.
In and of itself a holographic Will can be very helpful especially if someone has trouble getting to an attorney to prepare an attested Will.
In Susan Sample’s Will, above, here are some examples of problems that could occur depending on Susan’s situation.
- Fred Sample is not the parent of Susan’s children. Fred Sample has no desire to care for the children and they receive no part of Susan’s assets because the Will leaves everything to Fred.
- Fred Sample predeceases Susan so on her death Susan’s Will causes her assets to pass to her children in equal shares. One of Susan’s children is a minor so an expensive guardianship procedure is necessary for a guardian to take custody of the inheritance for the child’s benefit.
- Same as (b) above but one of Susan’s children has an outstanding judgment for a car accident. The creditor is able to seize the child’s inheritance to satisfy the judgment because there is no asset protection planning built into the holographic Will.
- Same as (b) above but after one of Susan’s children receives her inheritance she gets a divorce. The holographic Will has no “in-law” protection planning so the son-in-law’s family attorney can argue that the inheritance was comingled into community property and should be included in the marital property division.
- Susan’s largest retirement account has a beneficiary designation (or pay on death instructions) that do not coordinate with her holographic Will. Susan did not update the beneficiary designation on her retirement account to match her Will. When Fred shows Susan’s Will to the retirement account custodian they will ignore Susan’s Will and distribute the retirement account according to the beneficiary designation on file.
- Susan strongly desired to keep information concerning her assets private after death. However, Fred Sample did not know this desire and during the probate process filed an inventory of her assets as part of the public record of the probate case. Susan’s privacy could have been preserved with a trust.
When Is a Holographic Will a Good Idea?
The author apologizes if the previous section comes across as particularly gloomy. The goal was to give insight into situations where a simple holographic Will could cause more problems than it solves.
A holographic Will may be a good idea in situations with a very simple asset and family scenario where the testator and her attorney have considered where “the wheels can fall off” prior to drafting the Will.