At first glance, the term “holographic will” sounds like something out of Star Trek, but the concept is rather simple and has been around for a long time. It is a self-executed will in which the signature, date and material provisions are written by the hand of the testator. Such wills are valid in Nevada even when they are not witnessed or notarized, or were created in another state. The only requirement is that the testator be over the age of 18.
Sounds easy, right? Well, yes and no. While it’s easy for anyone to create a valid will, it’s a bit more difficult to create a will that accomplishes what you want it to. Holographic wills are notorious for being unenforceable because of ambiguities, errors and omissions. Here are some examples of common problems with holographic wills:
- Ambiguity — We’ve all written passages that were clear to us because we had in mind what we wanted to say, but when we handed it to someone else to read, they were confused about our meaning. This commonly happens with holographic wills. Testators omit formalities, such as full names for beneficiaries; so William Smith and Will Jones are left to wonder which of them is “my buddy, Willie.” Charities often have similar sounding names such as the American Association for Cancer Research and the American Institute for Cancer Research (not to mention the American Cancer Society). A testator who erroneously leaves his estate to the America Cancer Research Society is inviting a lawsuit. A testator who has a personal relationship with the local branch of a national charity must name the branch, or the national office can claim the bequest.
- Failure to dispose of the entire estate — Any asset that a testator does not designate for transfer to a beneficiary must pass according to the state’s laws of inheritance. So, any item a testator forgets to mention goes to the closest relative. A formal will has a residue clause to account for assets not specifically mentioned.
- Failure to name contingent beneficiaries — Holographic testators rarely consider the possibility that one of their intended beneficiaries may die first, and who should get a particular gift if that happens. This omission causes the gift to lapse. It becomes part of the residue that passes by intestate succession.
- Failure to name an executor — Unless the testator names a trusted person to execute the will, the court must appoint someone. The court-appointed party might not be someone the testator has confidence in.
- Failure to waive the surety bond — Normally, an executor must post a surety bond to protect beneficiaries from gross mismanagement of the estate. Most holographic testators are unaware of this expense for the executor, or that they can waive the requirement, saving their executor the expense.
There are many other reasons why a holographic will is risky. To be secure in your bequests, you should talk to an experienced estate planning attorney at Tyrell Law, PLLC. To schedule an appointment, call us at 702-382-2210 or contact our Las Vegas office online.