A holographic will refers to a will that is handwritten and signed by its creator but not properly witnessed. In some states, these wills are given special treatment because the use of the testator’s unique handwriting can ostensibly make the will “self-proving,” meaning a court considers it to be genuine, even without witnesses to confirm that it was properly signed by the creator.
New Mexico does not recognize holographic wills. However, handwritten wills that have been attested by the testator and properly witnessed can be admitted into probate under most circumstances.
If a holographic will was written in another state and would be valid in that state, New Mexico could recognize it under its foreign wills statute.
Talk to an Albuquerque holographic will lawyer to gain a better understanding of your options for creating a valid will or entering one into probate. You can discuss your case during a confidential, no-obligation consultation when you call New Mexico Financial & Estate Planning Attorneys at 505-503-1637 or contact us online.
Holographic wills can pose unique challenges for an estate. If possible, it is recommended to use a typed will that is executed and witnessed in the usual manner, even when residing in a state that recognizes holographic wills.
A holographic will is harder to revise, for one. You would either need to rewrite it in its entirety or use a codicil to amend it. There is also a strong chance that certain words can be illegible because of handwriting that is cramped, scribbled, or ambiguous.
Your holographic will may also require extra steps to be admitted. For example, some states have a requirement for the will’s authenticity to be confirmed by someone who is highly familiar with the testator’s handwriting or who has credentials as a handwriting assessment expert.
Whether you are someone seeking to create a will or someone entering a will into probate, an Albuquerque holographic will lawyer may be able to help. At New Mexico Financial & Estate Planning Attorneys, our goal is to assist you with every aspect of estate planning and will creation.
We can also provide assistance to the personal representative of an estate who is trying to enter a will into probate.
Some of the tasks an experienced Albuquerque holographic will attorney can help you with include:
Whether you have created a holographic will or plan on entering one into probate, we have an Albuquerque holographic will attorney available to assist you. Our primary goal is always to ensure that the estate can be dealt with as efficiently as possible, according to the testator’s wishes.
A holographic will — sometimes called an “olographic will” — refers to a handwritten will that is considered valid without the need for witnesses or notarization because the handwriting clearly (and uniquely) belongs to the testator.
According to some legal theories, “one of the reasons for validating a holographic will is that the larger handwriting sample yields greater assurance of the identity of the maker of the document than a mere signature.”
However, holographic wills have fallen out of fashion as access to computer-typed and easily printed wills has improved.
The Uniform Probate Code, which has been adopted with modifications by nearly every state, sets the following as minimum requirements for a will to be considered valid (UPC § 2-502):
The statute goes on to state (in UPC § 2-502 (b)) that “a will that does not comply with [the above subsection] is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting.”
Notably, New Mexico law eliminates this portion on holographic wills, in addition to eliminating the portion waiving the two-witness requirement if a notary is used.
Accordingly, our state’s laws require that any Albuquerque will created by an in-state resident must satisfy the following three provisions (per NM Stat § 45-2-502) :
In addition, the state’s definitions section of its modified version of the Uniform Probate Code (NM Stat § 45-1-201) indicates that the word “will” in statutory language specifically “does not include a holographic will.”
Our state’s laws do allow for certain holographic wills to be entered into probate, provided that they satisfy the laws of another jurisdiction where the testator resided (or otherwise had a valid reason to claim residence in that jurisdiction).
Per state law (NM Stat § 45-2-506):
“A written will is valid if executed in compliance with [our state laws] or if its execution complies with the law at the time of execution of the place where the will is executed or of the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode or is a national.”
In other words, a holographic will can be used if it was legal and would have been recognized in the jurisdiction where it was created at the time of its creation. Because of this provision, estate representatives in Albuquerque may be able to enter an out-of-state holographic will into probate.
They may need to take steps to prove that the holographic will complies with the laws of the relevant jurisdiction, however.
For example, if the holographic will was created in Louisiana, then the personal representative of the estate must be prepared to comply with this extra provision (LA CCP 2883): “The court must satisfy itself, through interrogation or from the written affidavits or the depositions of the witnesses, that the handwriting and signature are those of the testator.”
In practice, the provision requires that the personal representative produce someone who can testify that the handwriting of the will matches that of the testator. Alternatively, a handwriting expert or someone else who is qualified to verify the handwriting can provide a sworn statement to that effect.
In cases where a holographic will cannot be admitted into probate, the personal representative must find other documentation that would validly dispose of the testator’s estate.
For these purposes, state law (NM Stat § 45-1-201) recognizes any of the following, provided that it was validly executed and witnessed
The probate court can look to any of the above to see how the testator wanted to dispose of their estate. If there are multiple competing wills, then the most recent version takes precedence.
If a more recent will fails to dispose completely of estate property, then the personal representative can use the next-most recent will that does mention that property to dispose of it, specifically.
If any of the above fails to completely and totally dispose of the estate, such as by failing to mention a specific asset, and there are no other valid wills that do, then the unmentioned property is considered intestate.
If no document can be found that can be recognized as a will, then the entire estate will be considered intestate.
Intestate succession laws in Albuquerque (and the rest of the state) require that property be distributed automatically in the following fashion (per NM Stat §§ 45-2-102; 45-2-103):
The testator may also be able to leave parts of their estate through transfer mechanisms that don’t require a will. These include any of the following, provided that they have a valid named beneficiary that can be contacted:
A holographic will can be recognized and used to legally dispose of an estate in the following 28 states:
However, note that the state may only recognize a holographic will under special circumstances. For example, in the states of Maryland and New York, only a member of the U.S. Armed Forces can create a holographic will.
The will is only valid for up to one year after these individuals are discharged.
Holographic wills can pose unique challenges for an Albuquerque estate. Our Albuquerque holographic will law firm can assist you with ensuring that any will you create can be admitted into probate.
We may recommend that you create a new, non-handwritten will if you are the testator and still have the capacity to do so. We may also recommend strategies for managing an estate if the only instrument available is a holographic will.
Find out more about your options and how to best handle an estate that you are responsible for when you call New Mexico Financial & Estate Planning Attorneys at 505-503-1637 or contact us online.
CallCall now to schedule your consultation 505.503.1637
Office