A “holographic will” refers to any will that is handwritten by the will’s creator (called a testator). It is generally understood that this term means a will that is handwritten by the testator, but not properly witnessed. For instance, the definition of “will,” in the New Mexico statutes, specifically excludes a “holographic will.” NMSA § 45-1-201(57).
In some states, these wills are valid for use in probate, provided that they are signed, entirely in the testator’s handwriting and demonstrate clear testamentary intent — meaning that the testator intended for the document to serve as their last will and testament.
New Mexico law can recognize handwritten wills executed by New Mexico residents, but only if they are properly signed in front of witnesses, who must then attest to the document’s authenticity by signing it themselves. In other words, a New Mexico handwritten will can be just as valid as other wills so long as it is properly executed, and witnessed.
A “holographic will” is defined by the Uniform Probate Code, section 2-502(b) as follows:
“[Holographic Wills.] A will that does not comply with subsection (a) 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.”
This provision of the Uniform Probate code was rejected by the New Mexico legislature. It was left out and the definition of “will” in the statute, as stated above, was expanded to specifically exclude holographic wills.
The state of Colorado, by comparison, allows for holographic wills in their version of the Uniform Probate Code. It is also possible that a holographic will, if for instance executed in Colorado, could be entered into probate under New Mexico law if the will was valid in the state where executed. NMSA § 45-2-506.
You can learn more about wills and probate law in our state when you reach out to New Mexico Financial & Family Law. Call 505-503-1637 or contact us online to schedule a no-obligation consultation and estate plan review with an experienced New Mexico holographic will attorney.
There are three main reasons to refer to a New Mexico holographic will lawyer:
Of course, you can refer to an attorney at New Mexico Financial & Family Law for any guidance, questions, or assistance in regard to will creation, probate, or estate planning, in general. We have represented individuals and organizations on all sides of estate law, especially when they have burning questions about what the future may hold for a valued estate.
A holographic will is a testamentary instrument — meaning a document that directs the distribution of an estate — that is written entirely in the handwriting of the testator.
The name even offers clues: “holo” is derived from an Ancient Greek prefix meaning “whole,” and “graph” is derived from the Ancient Greek term “graphos,” which refers to “writing” or “script.”
Put together, the two terms have historically referred to documents that are written entirely by one person in their distinct handwriting.
Note that this usage of the term is different from “holographic” 3-D images, which are often printed on 2-D surfaces using prismatic materials. That usage of the term dates back to the 1960s when it was originally coined by inventor Stephen Benton to refer to his unique way of representing 3-D figures in 2-D space.
The legal concept of a last will and testament dates all the way back to Ancient Greece. The Ancient Romans, ever-fond of Greek traditions, absorbed the practice, allowing certain individuals to divide out their estate as they saw fit rather than having it automatically distributed to relatives or become the property of the state.
The first historical record of a common law practice offering special recognition for handwritten wills emerged in early France. The Napoleon Code later formalized this special type of testamentary instrument.
Whereas most wills had to be witnessed by a certain number of individuals — anywhere from two up to seven — a holographic will was considered “self-proving” because the testator’s handwriting was sufficient to prove the authenticity of the document. The practice spread to Germany (where it remains popular to this day) as well as Austria, Belgium, Italy, Spain, and Scotland.
English Common Law recognized the validity of holographic wills for all property up to 1677 and for personal property up until 1837.
Likely because of its status as a former French colony, Louisiana has the most traditional approach to holographic wills. Their use dates back to the settlement of New Orleans and the later adoption of similar provisions into continental law.
To this day, Louisiana recognizes holographic wills (called “holographic wills”), provided they are written entirely in the hand of the testator, who must also sign and date the document.
The signing or creation of the document does not need to be witnessed in Louisiana. However, at least two witnesses must be produced who either recognize the testator’s handwriting or can attest that the document is authentic because they hold expertise in handwriting analysis.
In addition to Louisiana, holographic wills may be recognized, under certain circumstances, in 26 other states:
The states of New York and Maryland recognize a holographic will only if it is created by a member of the Armed Forces. In these states, a holographic will is only valid until one year after the individual leaves the Armed Forces.
Understanding that the term “holographic will” generally means a will that is unwitnessed, the answer is “No.” However, a New Mexico probate court must recognize any will that is valid in the state where it was executed.
New Mexico statutes section 45-2-506 provides:
“A written will is valid if executed in compliance with Section 45-2-502 NMSA 1978 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 or is a national.”
There are many reasons a will can be contested during probate:
If the will entered into probate is declared invalid, then the most recent valid version of the will comes into effect. If there is no other valid version available, then the estate becomes intestate.
An intestate estate is distributed automatically to next-of-kin, according to state laws (NM Stat § 45-2-102; § 45-2-103).
If there are surviving children and a surviving spouse, then the surviving spouse inherits all community property and one-quarter of separate property, and the children split the remaining three-quarters of separate property evenly among them.
If a person is survived by a spouse but not any children, then the spouse inherits the entirety of the estate. Otherwise, the most immediate surviving next-of-kin inherits the estate, split evenly among others in their category, in the following order of priority:
A will is recommended for every estate because it can designate a personal representative and communicate other important wishes, like who should assume guardianship for any surviving minor children. The document also guides the personal representative and the courts in matters where the wishes of the testator would otherwise be confusing or unclear.
Moreover, sometimes property that was intended to be placed in trust or a transfer on death account, see below, was not properly titled or transferred. It is a good idea to have a will even if never necessary, if only to “mop up” some property that was not properly excluded from probate. Often the will, which is only used if necessary as a backup, will simply provide that any property left to be probated will be placed in the existing trust.
A will is not necessary, though, to bequeath any of the following types of assets, accounts, and insurance benefits:
Of these, a living trust provides the most flexibility when it comes to long-term management of its assets. The trust creator can customize the trust to instruct their trustee when distributions are paid out.
Assets held in a living trust also bypass probate entirely.
Assets can be transferred into a trust years in advance of the testator’s death and allowed to grow through smart management by a trustee. The trust can then pay out income or transfer assets to beneficiaries when designated conditions are met, such as “three years after the death of the grantor (trust creator)” or “when my nephew reaches the age of majority.”
You have the option of handwriting your will in New Mexico, but there are many other considerations and opportunities to take into account as part of your estate plans.
Our New Mexico holographic will law firm can help you evaluate your plans for gifting to heirs, supporting beloved family members, donating to charity, reducing taxation on your estate, or planning for a time when you are alive but medically incapacitated.
Get started on your will creation and estate planning today when you reach out to New Mexico Financial & Family Law. Call 505-503-1637 or contact us online to schedule a no-obligation case review today.
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