Houston Estate Planning and Elder Law Attorney Blog
There are two primary types of wills under Texas law: 1) holographic and 2) non-holographic wills. Non-holographic wills are typed, witnesses, and attested wills. In contrast, holographic wills refer to entirely handwritten wills. In Texas, holographic wills are only enforceable when the entire document is written in the testator’s handwriting. While holographic wills might be valid and legally enforceable, more often than not, they result in Texas estate and probate disputes.
A notable example of the dangers of holographic wills involves the popular music group The Monkees. Michael Nesmith, a group member, left a lengthy will leaving his entire estate to his mother’s foundation. However, there were issues with the will’s legality because it was handwritten.
Holographic Will Formation in Texas
Handwritten will appeal to many people who believe that their situations are simple enough that they do not need the assistance of an attorney. However, making a holographic will in Texas requires strict adherence to complex estate laws.
Valid Texas holographic wills require the testator to clearly indicate all items in the will, the recipients of the items, and who should serve as an “independent executor.” In addition, the testator should take steps to ensure that the independent executor knows that the will is valid.
Common Problems with Holographic Wills
There are many issues related to holographic will validity. However, a common problem relates to ambiguities and errors. While the intent may have been clear to the writer, those left to interpret the will may encounter challenges. For instance, while a testator may use a phrase or name with a particular meaning, the failure to make the intent explicit can result in probate issues.
Further, another problem involves naming the independent executor or beneficiaries. Issues often arise when the independent executor or a named beneficiary predeceases the testator. This is a common problem with handwritten wills in Texas because the state does not require testators to have a witness in the creation or signing of the will. Without a witness, the court is left to interpret what the testator intended. Finally, even minor discrepancies or bad handwriting can result in will disputes.
Contesting a Holographic Will
There are various reasons a beneficiary may contest a will in Texas probate court. The primary reasons why a court may declare a will invalid include:
- Fraud
- Undue influence
- Incapacity
- Subsequent will
The fundamental nature of holographic wills makes them more likely to be the subject of a contest in probate court. As such, it is crucial that those considering a will contact an attorney to ensure that their intent is made clear.
Consult with a Houston Trusts and Estate Planning Attorney
If you or someone you know is contemplating creating a will or contesting a will, contact the Houston estate planning and elder law firm of McCulloch & Miller, PLLC. For over 30 years, the managing partners at the firm have been advocating and representing those involved in estate planning. In addition to providing traditional estate, tax, and planning services, our team has extensive experience in veterans benefits, Medicaid crisis planning, and rental property planning. We ensure that we create binding and legally enforceable estate plans for our clients. Contact our office at 713-333-8900 to schedule an initial consultation with an attorney on our team.