Proving the validity in probate court of a holographic will — a type of last will and testament that is handwritten, signed and dated by the testator or testatrix (the person making the will) — is more challenging than proving the validity of a formal will after the testator/testatrix has passed away. You may remember the legal battle with Aretha Franklin’s handwritten wills, discovered in her home months after her death.
States often require formal wills to be initialized on each page and signed in the presence of two witnesses. The purpose of having witnesses is to provide reliable testimony if the authenticity of the will is later questioned. Witnesses can confirm that the person drafting the will was not coerced, that they appeared to understand what they were doing, and that they acknowledged the document as their true will.
With holographic wills however, there are no witnesses — which makes proving their validity a lot tricker.
First, the court must be convinced that the handwriting truly belongs to the decedent. This can be demonstrated through testimony from people familiar with the decedent’s handwriting or, in disputed cases, through expert handwriting analysis.
Intent is another issue to tackle. Without witnesses, there’s often no context for the will’s creation. Was the document a serious expression of the final wishes of the person who drafted the purported will or was it merely preliminary notes? Did the testator/testatrix later revoke or replace this will and simply forget to discard the original?
Holographic wills — recognized only by about half of the states — can serve as a stopgap measure in emergencies, but they are not ideal for comprehensive estate planning. Financial advisors play a critical role in guiding clients toward legally sound, properly executed estate documents that ensure their wishes are honored and assets distributed efficiently.
How Advisors Can Assist
It’s important to first identify whether your client’s estate plan includes a holographic will — especially if the client has written one without legal counsel. If you don’t know, ask your client about their will.
If you learn that your client has a holographic will, check to see if the client’s state recognizes this type of will as valid. If the will is not valid, let your client know this could be an issue. Also encourage your client to consult with legal counsel to consider the inherent issues that might keep the will from accomplishing their intent (more on this later).
As an estate-planning attorney, I also suggest that advisors encourage formality, not for the sake of formality but because holographic wills are more prone to disputes and challenges, even in states where they are valid. Recommend that clients draft formal wills with their estate attorney, tax advisor and loved ones, where appropriate.
As a financial advisor, you can play an essential role on an estate-planning team by ensuring that a client’s financial situation aligns with the legal strategy devised by their attorney. When our law firm collaborates with financial advisors, this helps our high-net-worth clients efficiently meet their goals of transferring wealth, reducing estate tax burdens, and preserving retirement income.
Advisors help assess whether estates have sufficient liquidity to cover taxes and expenses. The advisors analyze which assets are best suited for lifetime gifting versus transfer at death, taking into consideration potential tax consequences and future growth; use financial planning tools to project retirement cash flow; and help ensure that clients can meet their own needs while funding trusts or making gifts. Once trusts are established, the advisor assists with funding and may continue to manage trust investments to ensure they meet the trust’s objectives.
For Loved Ones With Special Needs
Financial advisors can also provide key input for clients facing the unique challenge of long-term planning for loved ones with disabilities. We use special needs trusts (SNTs) to protect beneficiaries who cannot supervise a trustee or otherwise protect their own interests. SNTs help protect assets while maintaining eligibility for crucial government benefits. Additionally, creditors cannot access or claim the assets of a beneficiary who has a discretionary interest in an SNT. Advisors should keep this in mind when assisting families with special needs with the estate-planning process.
State Specifics
As mentioned earlier, holographic wills are recognized in about half of U.S. states. Some states only accept them under limited circumstances (e.g., military service or emergencies), and 20 states do not recognize them at all.
The following 21 states fully recognize holographic wills, with no witnesses required: Alaska, Arizona, Arkansas, California, Colorado, Idaho, Kentucky, Louisiana (recognized under “olographic” will provisions), Mississippi, Montana, Nevada, North Carolina, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming.
The following nine states may recognize holographic wills only if they meet specific conditions:
Michigan – Recognizes “intent” holographic wills if the material portions are in the testator’s handwriting.
New Jersey – Accepts holographic wills if it can be proven the document was intended to be a will.
New York – Allows only for members of the armed forces or mariners at sea, and they expire after a set time.
Maryland – Recognizes only if made by a member of the U.S. Armed Forces. Such wills are valid for one year after discharge unless the testator lacks testamentary capacity at that time.
Hawaii — Accepts if the material portions and signature are in the testator’s handwriting. Witnesses are not required.
Nebraska — Recognizes if the signature, material provisions, and generally the date are in the testator’s handwriting.
7 -9. Connecticut, South Carolina, and Washington – Do not allow holographic wills from their own residents but may accept them if valid where created.
These 20 states require wills be formally executed with witnesses and do not recognize holographic wills: Alabama, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Maine, Massachusetts, Minnesota, New Hampshire, Ohio, Oregon, Rhode Island, Vermont, Wisconsin, Missouri, New Mexico and Pennsylvania.
Aretha’s Case, Up Close
My colleague at Fausone & Grysko, PLC, Kurt Olson, was involved in the Aretha Franklin litigation, which highlighted important aspects of how holographic wills are treated under Michigan law. The legal dispute there centered on the validity of two holographic wills discovered after her death in 2018.
A 2010 will, found in a locked cabinet, was a more formal handwritten document, dated and notarized,. It outlined a fairly even distribution of her estate among her four sons, Clarence, Edward, Kecalf and Ted White Jr. Under this Will, Kecalf and Edward were required to take business classes to access their portions, Ted White Jr. was named as co-executor of the estate and Clarence was provided for in a special needs trust.
A 2014 will, found inside of a spiral notebook among scrap paper under a couch cushion, was handwritten and less formal, but was dated and signed. The jury ultimately ruled it valid. The 2014 will was more favorable to Kecalf than the 2010 will — giving him a greater share of the real estate and control over the estate’s administration. The new will:
Gave Kecalf and his children Aretha’s primary home, worth over $1 million.
Removed the requirement that Kecalf and Edward take business classes to access their inheritance.
Named Kecalf and Edward as co-executors, and removing Ted White Jr. as co-executor.
The absence of a formal, witnessed will led to a protracted legal battle among Franklin’s heirs which unfolded over several years, emphasizing the importance of clear estate planning.
Although estate disputes are usually decided by a probate judge, in this case jurors determined which will was valid. Using a handwritten will adds legal unpredictability by opening the door to jury interpretation of the will, especially where family disputes are involved.
What Can Go Wrong?
Although legally permissible in many states, holographic wills can present several challenges:
Authentication Difficulties: Without witnesses, establishing the authenticity of the handwriting and the testator’s intent can be problematic.
Ambiguities: Handwritten Wills may contain vague or unclear language, leading to disputes among beneficiaries.
Omissions: Important elements, such as naming a personal representative or addressing contingencies, might be inadvertently left out.
Increased Litigation Risk: Due to the above factors, holographic Wills are more susceptible to being contested in probate court.
Given the potential pitfalls associated with holographic wills, don’t delay in encouraging your clients to make sure they have a will that can provide as much clarity as possible and reduce the likelihood of disputes. Overall, the financial advisor provides practical, tax-aware guidance that turns the legal framework into a working, real-world plan, So, it’s a best practice for the attorney and the financial advisor to work together to achieve client objectives.
Lisa Stempien is an attorney with Fausone & Grysko PLC in Michigan. She assists families, individuals and businesses with estate and succession planning, probate, regulatory compliance, litigation, municipal law and education advocacy. She previously taught business and business Law courses to graduate and undergraduate students and reading comprehension to students of all ages. She can be reached at lstempien@thefgfirm.law.
