Is A Handwritten Will Legal?
Handwritten wills are usually referred to as holographic wills. In Utah, a handwritten will is considered legal and binding but has to meet certain specific requirements. It is essential for a person to write a will with the guidance of his or her lawyer. A written will is critical for distributing property according to a person’s wishes or desires when they die. A person who dies having written a will is said to have died testate. One who dies with no will is said to have died intestate.
For a holographic will to be considered valid, it is supposed to be written in your handwriting. The will does not have to be necessarily in a formal language; however, it should be written in an understandable language. If a person dies, intestate the person’s property and assets will be distributed per the State’s intestacy laws. For a will to be considered valid in Utah, the following requirements have to be met;
The testator must,
- Attain the age of majority,
It is a requirement by law that a person writing a will, usually referred to the testator must attain the majority age. In Utah, the majority or legal age is 18 years and above. Exceptions such as being a member of the U.S army may be considered, but this only happens on rare occasions.
- Be of sound mind
Statutory laws require that a person writing a will should have the legal capacity to do so. At the time of writing the will, the testator should be of sound mind and should be able to demonstrate this. The demonstration entails the person knowing or being aware that they are writing a will. They should also be mindful of the nature and scope of their property.
- Not be coerced
A legally acceptable will should be written on voluntary intent. If there were attempts of coercion or the will was written under duress, then it will not be legally binding nor valid. The person writing the will should do it under his or her intent to make the distribution of his or her assets effective at the time of death.
- Distribute personal property
The sole purpose of writing a will is to distribute personal property. If the property in question is not private or under the name of the testator, then the will ceases to be valid. Distribution of other property other than personal property in the will makes it invalid and not legally binding. Such property is then distributed according to intestacy laws.
- Have witnesses
All written wills must have witnesses. The State of Utah requires that there are at least two witnesses to be present at the time the testator is writing or signing his or her will. The witnesses should also be of sound mind and be of legal age. It is also necessary that the witnesses are not interested parties in the property to be distributed. However, sometimes the beneficiary may also be the witnesses. After the will is written, the witnesses append their signatures on the will and write the specific date. Some State law provisions may require the witness to swear an affidavit stating the authentication of the will.
An executor is a person allowed to carry out all the instructions in the will. He or she is in charge of overseeing the distribution of the assets and other properties in the will to the beneficiaries. The executor must strictly distribute the property according to the instructions laid out in the will. Failure to follow instructions provided in the will may necessitate the court to appoint a new executor. The court can also appoint an executor if the will does not provide one.
A beneficiary is a person who is set to receive property left behind by the testator. This may entail one person or group of people as well as a business organization. It is particularly essential that the holographic will states clearly the person or people who will get the property. Some of the common beneficiaries include children, grandchildren, brothers, sisters, and other surviving relatives of the deceased.
- Legal spouse
The testator must clearly state in the will what is to be provided to the spouse. Most of the states have statutory laws that protect spouses regarding inheritance. If the will does not cater to the needs of the spouse, then statutory laws may be applicable. The inheritance laws in Utah may allow the significant other to take a considerable share of the property and ignore the provisions of the will. The substantial portions usually entail either a third or one-half of the entire testate’s property.
- Allocations for minors
The testator should consider minors. This is important, especially if the testator was the sole provider of the family. However, it is common for some people to disinherit their children due to specific reasons. In Utah, the law establishes that the person should mention the particular child or children who are being disinherited.
All holographic will must contain the signature of the testator as well as the witnesses. The place of the signature on the will varies from State to State. Some State prefers the signature to be placed at the beginning of the will while others require it to be placed at the end. The signature must be of the testator specifically, but he or she can be assisted if the testator has physical hindrance in signing the document.
- Formal ceremony
This refers to a legal ceremony that happens during the signing of a will. In Utah, the ceremony is optional and has no legal significance. During the gathering, some recitations may have to be made prompting irrelevant individuals to leave the room.
Importance of having a handwritten will
A handwritten will is essential in preventing a person’s property from being distributed using intestacy laws. Moreover, if the will is not executed properly or doesn’t adhere to the requirements of a holographic will, then it may become invalid. There are several benefits associated with holographic wills some of them include;
Gives control of one’s properties and assets
Most of the people who write their will claim to have more control of their property. The process also gives them some form of satisfaction, knowing that they have control over their estate even after they pass on.
Cheaper than other methods
Handwritten wills are more affordable compared to other types. What makes attested wills expensive are the legal fees that have to be paid to lawyers who produce them. Such fees are usually eliminated in holographic wills, making them cheaper than attested wills. These kinds of costs make it harder for low-income earners to have a will.
Convenience and efficiency
Attested will have more requirements and formalities that need to be followed. Such conditions make the wills less convenient to make in a time of emergencies. However, unlike attested wills, handwritten will only require a piece of paper and a pen to be written. In case of an emergency, a holographic will can be more convenient than other types of wills.
Challenges posed by handwritten wills in the absence of an attorney
Difficult to write
A person who wishes to write a will may not be well versed with probate law. In the process of writing the Last Will and Testament, one might be driven to include details that he/she finds sensible. However, when placed before a probate court, the judge might find the document invalid. The court will then be forced to adjust the will according to the relevant provisions of the law.
Usually, when writing the will, the testator may not have huge costs. However, after he/she passes on, the beneficiaries may be subjected to more expenses, especially if the will is contested in court. The case might also require the presence of a witness who will testify to the State of mind of the testator. The witness will also be needed to confirm if the testator was in any form of duress or coercion. Such expenses are foreseen but may have a significant impact on the overall value of the property or assets.
Difficult to prove its legal validity
It is challenging to verify the validity of holographic wills than attested ones. Since the will is handwritten, more evidence may have to be provided to ascertain that the handwriting is indeed the handwriting of the deceased. Handwritten wills are also prone to many legal issues that may invalidate them.
If the testator has no legal knowledge, he or she may leave out specific requirements that are very important. A typical will contains various provisions that make it valid and legally binding, omitting such provisions may make the will to be invalid and the property distributed according to intestacy laws. A holographic will may also lack certain provisions to dispose of the entire property and assets. In such a case the remaining portion of the property will have to be arranged under the intestacy laws.
It is also common for many handwritten wills to leave out children who are minors or forget to name the guardians of the children. Holographic wills are also prone to failure of mentioning all the beneficiary of the property being left behind. In such cases, besides the deceased final wishes being left unspoken, some of the beneficiaries and children end up suffering.
Locating the will can be challenging
This is another problem associated with holographic wills in the absence of an attorney. In most cases, the testator writes the will and places it in a location only known to him or her. After the death of the testator, the beneficiaries have a hard time tracking the whereabouts of the will. If the will is not found in time, then the effort and expenses of writing such a will end up to be a waste.
Difficult to track witnesses
The witness that was present at the time of writing can be difficult to track down. Besides, in case, the will is challenged in court more witness may be required to verify the handwriting, the signature as well as the legal capacity of the testator. Unlike holographic wills, attested wills are generally filled with self-proving affidavits of the witness, making it easier to make a decision even if the witnesses are not present in person.
Notarizing handwritten wills in Utah
Notarizing a will is the process of getting a third-party to witness and append their signature to your will. The witness will also check the facts of the will as well as ascertain that the other witnesses did so willingly and not under any form of coercion or duress. In Utah, notarizing your will is not a requirement of making the will valid and binding. However, the State allows the will to be self-proving by the witness swearing an affidavit. To make the will self-proving you may need to visit a notary. The benefits of having a self-proving will are that it is easier for the court to make a decision in case the will is challenged in court.
The probate process will be easier and shorter as the court will accept the will without the witnesses being present in person. While at the notary you and your witnesses will have to sign an affidavit that explains your identity as well as your intentions. Your witness will also have to state who they are and that they witnessed you signing or writing the will. They will also have to state that neither of you was under any form of coercion or duress. Generally, it is essential to make your will notarized just in case anything happens after you are gone. The primary purpose of having a will is to distribute your property according to your wishes as well as ensuring that your beneficiaries have peace of mind when you are gone.
Seek help from a probate attorney
A probate lawyer is well versed with the provisions of the law that will validate your will. A testator does not usually want his/her will to be contested after they pass on. One way to avoid this is by ensuring that your attorney provides assistance as you write your will.
Handwritten Will Lawyer Free Consultation
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506