If you simply take pen and paper and write down your wishes for who you want to inherit your property, have you created a legally binding will? Maybe. It depends on which state you live in.
It’s always best, whether you go to a lawyer or prepare your own will with the help of a book, software or website, to print out the final document, proofread it carefully, and sign it in front of two witnesses. That’s the standard procedure for executing a will in every state.
But handwritten, unwitnessed wills —also called “holographic” wills—are valid for everyone in about half the states.
You can make a valid handwritten will without witnesses in the states listed here. (A few more states allow sailors at sea or soldiers at war to make holographic wills, which become invalid soon after discharge from the military or return to land.)
To be valid, the will must be entirely handwritten. Some states also require that the will must be dated as well as signed.
After the person who wrote the will has passed away, it’s more difficult to prove the validity of a holographic will in probate court. The whole point of having witnesses watch you sign your will, after all, is so that if there’s any question about the will’s validity, the witnesses can come to court and testify. They can state that they heard you say the document you were signing was your will, and that you seemed aware of what you were doing and were not under the undue influence of someone hoping to inherit from you.
First, there must be evidence that the handwriting is in fact that of the person who has died. This may be supplied by the testimony of people who were familiar with the person’s handwriting, or if there is an argument over the will’s validity, by an expert in handwriting analysis.
In addition, there can be questions about your intent. Because holographic wills don’t have any witnesses, the circumstances surrounding the signing of the will aren’t usually known. Was it really your will, or just some notes you were making as you thought about writing a formal will? Did you change your mind later and just forget about the document?
A holographic will might sound simpler than a formal, computer-generated and witnessed one, but it’s not a good idea, for all these reasons just discussed. It’s always preferable to make a formal will, printed out from your computer and signed and dated in the presence of two witnesses.
If you’re concerned about privacy, and don’t want your witnesses to know the terms of your will, don’t worry. Witnesses don’t read your will—all they need to know is that the document you’re signing, and which they will also sign, is your will.
It’s not difficult to make a formal, legally binding will. You can make a simple will—which comes with detailed instructions for how you and your witnesses should sign it with Quicken WillMaker & Trust software or online at nolo.com.