During the current health crisis, particularly for those who have tested positive for COVID-19 or those who are at particular risk, it may be better to have a holographic will than to have no will at all. However, it is important to know the requirements as well as the risks and downsides to using such a handwritten will. If at all possible, it is certainly better for everyone involved, from the testator to the executor and beneficiaries, for there to be a properly executed traditional will.
The crucial requirement under New Jersey wills and estate law, for a handwritten will to be admitted to probate in New Jersey is that the will was written by hand, signed and dated by the decedent and that the signature and key provisions are clearly written by the same hand and that the handwriting is identifiable as that of the decedent. To prove that in court usually requires testimony by a handwriting expert and/or witnesses who are familiar with the decedent’s handwriting. The holographic will must be presented to the Superior Court by an order to show cause in order to be probated, even if all interested parties agree that the will is valid and represents the decedent’s wishes and intentions about their estate.
The relative difficultly and corresponding time and expense required to have a holographic will admitted to probate are among the reasons why it is preferable to have a properly executed traditional will, with witnesses and a notary. Further, each beneficiary and heir at law may have different interests and goals, which often results in conflicting evidence and testimony and complicates the analysis leading to increased expenses and time spent litigating if the holographic will should be admitted to probate. In addition, traditional wills are submitted to probate through the Surrogate’s Court, but a handwritten will must be filed in the Superior Court.
Additionally, while effectuating an estate plan usually brings a measure of comfort to the testator in that they then know that their assets will be distributed according to their plan, a holographic will does not come with the same level of certainty. First, because handwriting analysis is not an exact science, a person who has written a holographic will by hand cannot be sure that it will be admitted to probate. If the will is not found to be valid and therefore not admitted to probate, it will not govern the distribution of the decedent’s assets – and remember, this can happen even if it was the decedent’s wishes if she didn’t follow all the requirements for a holographic will to be valid under New Jersey estate law. If invalid, the estate will be distributed pursuant to the terms of a prior will or the law of intestate succession (i.e., what New Jersey estate law says should happen when a decedent dies without a will).
Second, the assets available for distribution to the beneficiaries or heirs will be reduced due to the additional costs required to bring an action in Superior Court to probate a holographic will.
Finally, these wills, which are often drafted and handwritten without legal advice and thus without a complete understanding of the effect of the provision written, may impact not only the validity of the will, but also whether the provisions written in it actually accomplish the testator’s intentions.
In summary, a properly executed traditional will drafted by an attorney provides greater clarity and certainty than a holographic will, and probating such a will is simpler and, barring other issues, significantly less expensive. While a handwritten will may be better than having no will at all, it is prudent to have an attorney experienced in estate planning to assist you in creating a properly executed traditional will which effectuates your intentions. A holographic will may be used if you cannot meet with an attorney and two witnesses to execute a properly drafted Last Will and Testament. Indeed, it may be used where you cannot meet with an attorney or when health conditions or emergencies prevent wills and a notary. It is always best to get the advice of a competent and experienced estate planning attorney.
The New Jersey estate planning attorneys at McLaughlin & Nardi are experienced and well versed in estate planning. Contact our attorneys at (973) 890-0004 or fill out the contact form on this page to schedule an estate planning consultation. We can help.