Las Cruces Holographic Will Lawyer

A “holographic” will refers to a special type of unattested will that may be recognized in certain states and other territories. These wills are entirely written in the handwriting of their creator (known as the “testator”), who typically must then sign it for it to go into effect.

New Mexico requires that all wills executed in the state be properly witnessed for them to be considered valid. A holographic will may be accepted if it was created in a state that recognized them as valid while the testator resided there or was domiciled at the time of the will’s creation. However, to avoid issues with entering the will into probate, it should ideally be updated and executed, according to the rules for a valid will in New Mexico.

A Las Cruces holographic will lawyer can help you determine if a will could be accepted and what steps may be needed to carry out the wishes of the testator as intended. If you are someone currently engaged in estate planning, we can help you update (or, possibly, supplement) a holographic will created in another jurisdiction.

Reach out to New Mexico Financial & Estate Planning Attorneys for assistance with probate, updating a will, or creating an entirely new one. We can optimize your estate plan towards your goals and your unique situation. Or, if you are someone representing an estate that used a holographic will, we can review your options and help you decide on the best strategy for moving forward.

Book a no-obligation, confidential case review at any time when you call us at (505) 503-1637 or contact us online.

Issues to Be Aware of When Meeting With a Las Cruces Holographic Will Attorney

The Doña Ana County probate court — and all probate courts in the rest of the state, by extension — only recognize wills that are properly executed, according to state law.

New Mexico law (NM Stat § 45-2-502) says that, for a will to be valid, it must be:

• In writing, which can apply to handwritten and printed wills, but not oral or electronic ones
• Signed by the testator, or signed at their direction and in their presence
• Signed by two witnesses, who must observe the testator as they sign (or have the will signed at their direction)

Having the will notarized is recommended (but not required) because it makes the will “self-proving.” This means that the will is considered to be demonstrably genuine, including the testator’s signature. Without this step, a will contestant may request that one of the witnesses be called to testify and attest to the document’s authenticity.

The Holographic Will Tradition

The problem with a holographic will is that it acts as a “loophole” for having your will witnessed. These wills appear as a legally recognized estate planning instrument in some legal traditions because they are supposed to be “self-proving” since they were written in the testator’s own handwriting.

In times when writing by hand was more commonplace, someone’s personal handwriting style was supposed to be impossible to imitate convincingly. Accordingly, holographic wills were accepted without witnesses because there was no way to fake the handwriting — or so the legal theory went.

Because of their historical use, many states adopted legal language into their statutes accepting holographic wills. 27 states now recognize holographic wills as valid, although many have unique rules or circumstances that apply. Louisiana, for example, can require an estate executor to call someone as a witness who is either familiar with the testator’s handwriting or who is an expert in identifying handwriting, generally.

Using a Holographic Will Created out-of-State for Las Cruces Probate

State law (NM Stat § 45-2-506) recognizes any will as valid if it would have been valid at the time and place it was created. This statute means that a holographic will can be used to dispose of an estate in Las Cruces, so long as it is an out-of-state (or foreign) will that would have been accepted in the place where the testator resided or was domiciled at the time the will was executed.

Possible Legal and Procedural Challenges to a Holographic Will

The biggest issue to be aware of with a holographic will is that it can be difficult and complex to be entered into probate.

A holographic will could be challenged on the following grounds:

• The will is not genuine. Without witnesses, the estate’s personal representative must find some other way to verify the will’s authenticity. They may need to call people close to the testator who can attest that the handwriting is a match, and they may even need to consult with a handwriting expert.
• The will was created as a result of fraud, misrepresentation, undue influence, or duress. Witnesses are key not just because they can testify that they saw the testator sign a will. They are also able to describe the manner of the testator and the conditions in which they signed. Witnesses may be called to testify that the testator was not clearly forced or manipulated into signing the will, for example. A holographic will makes this due diligence much more difficult (if not impossible, in some cases).
• The document was not intended to be the testator’s will. Handwritten notes are, generally, seen as less formal than a typed document. Someone may have been jotting down notes, for example, rather than creating a genuine will. In the absence of language confirming the creator’s testamentary intent, a will contestant could argue that the holographic will was, in fact, a rough draft or otherwise not meant to act as a formal will.
• The holographic will is superseded by a more recent document. Unlike many other states, some states, including California, do not require a holographic will to be dated. However, if the lack of a date causes confusion as to whether the handwritten will or a different will should be used, then the holographic will may be declared invalid, in part or in full.
• Confusing or conflicting modifications. Another danger of holographic wills is that they invite the question, “Was this handwritten note in the margins meant to be included as part of the will?” Without a witness, it could be possible that a document that was signed and later had handwritten notes added was not meant to serve as a will. States like New Mexico that require witnesses require any will revisions or additions to be properly executed and witnessed in the same manner as the will itself.
• Vague, conflicting, or legally unenforceable language. Holographic wills used during Las Cruces probate may be more likely to include mistakes or poorly chosen legal language, compared to one that was meticulously typed, reviewed, and edited for clarity. They may accidentally omit or unintentionally modify some of the testator’s intended language, for example, since the act of handwriting a will is more labor-intensive.

When a holographic will is declared invalid, another valid, non-revoked will may be used in its place. However, if there is no valid will available, the estate becomes intestate. The testator’s closest surviving kin then inherit the entire estate, according to New Mexico’s intestate succession laws.

Accordingly, a testator’s immediate survivors (often their children and/or spouse) may be motivated to have a holographic will declared invalid by the court. As an example, a holographic will that was to be used to settle a Montana estate was only considered valid in its ability to appoint a personal representative. The remaining portions of the will were struck down, leaving the estate intestate.

The estate’s personal representative is obligated to defend against these challenges. The will’s beneficiaries also have legal standing to dispute the challenge — or even attempt to hold the personal representative liable for a failure to use the holographic will. Accordingly, the best situation for an estate is to have a will whose validity and intent are indisputable.

Which States Accept Holographic Wills?

Holographic wills may be used in the following states, although the exact rules and requirements vary from state to state:

• Alaska
• Arizona
• Arkansas
• California
• Colorado
• Idaho
• Kentucky
• Louisiana
• Maine
• Michigan
• Mississippi
• Montana
• Nebraska
• Nevada
• New Jersey
• New York
• North Carolina
• North Dakota
• Oklahoma
• Pennsylvania
• South Dakota
• Tennessee
• Texas
• Utah
• Virginia
• West Virginia
• Wyoming

Some states only allow the use of holographic wills under specific circumstances. New York and Maryland, for example, only allow members of the U.S. Armed Forces to create holographic wills. However, these wills are automatically made invalid within a year of the testator’s discharge from the service, unless they lose testamentary capacity before this time.

Louisiana and Virginia require at least two qualified witnesses to attest that the handwriting in the will is genuine.

You can consult with a Las Cruces wills lawyer for more information on laws regarding holographic wills and whether a given will might be considered valid.

Creating a New Will That’s Valid Under Las Cruces Estate Law

The best course of action for anyone who currently lives in Las Cruces (or who intends to have some or all of their estate settled there) is to create a new, valid will that complies with state laws. That means having a will that’s in writing (typed or handwritten) and signed by you in front of at least two witnesses.

A typed will document is recommended in most situations. Having an electronic draft available means that the document can be pulled up and revised with minimal rewriting in case future changes are needed.

Other due diligence practices that can be followed when creating a will include:

• Submitting to cognitive tests to affirm your ability to understand your will and that you lack impairments.
• Dating your will, and revoking old copies using clear, unambiguous terms
• Declaring your testamentary intent, meaning that you affirm that the document is intended to be used as your will
• Avoid making handwritten corrections. In Las Cruces, all changes to the will must be formally executed and properly witnessed.
• Limit your use of out-of-state or foreign wills unless you have compelling reasons for keeping these old documents and including them in your estate plan. Be sure to refer to them explicitly in your most recent copy of your Las Cruces will, and consider conferring with the person who is going to serve as your estate’s representative to make sure they’re clear on the expected procedure.
• Discuss your plans with loved ones or professional advisors. These conversations can not only “soften the blow” when the time comes to use your will, but they can also act as lasting evidence for your intended plans and the genuineness of your will.
• Update your will after major life changes or at least once every few years.
• Have a Las Cruces holographic will lawyer review your estate plan, especially in cases where you wish to retain a handwritten will in any capacity.
• Consider using non-probate transfer arrangements like beneficiary designations, joint tenancy with rights of survivorship (JTWROS) property deeds, and living trusts to limit the probated size of your estate and, therefore, the volume of assets disposed of through your will.

New Mexico Financial & Estate Planning Attorneys can assist you with adhering to these recommended practices when making critical arrangements. Not only that, but our lawyers offer experience and deep legal knowledge, meaning we can review your estate plan to make sure it works together as a seamless whole.

Conflicting estate plans can cause strife, confusion, legal conflict, and compromises to your intended outcomes. Reach out to a Las Cruces estate planning attorney to make sure everything fits together and is primed to achieve your goals the way you envisioned them.

Update or Probate a Holographic Will in Las Cruces With Our Help

Estate planning inevitably involves sensitive matters. Between the person creating their will, their heirs, and others with an interest in their estate, there’s a strong need to get everything right. New Mexico Financial & Estate Planning Attorneys can work with you to achieve just that.

Whether you have questions about holographic wills or want to create a new will, we can provide guidance along every step of your journey. We can also assist personal representatives and others with an interest in an estate during probate, including cases involving a holographic will. Schedule an appointment to find more when you call our offices at (505) 503-1637 or contact us online.