Life Care Planning: In an emergency without a will: The holographic fix

Sandra W. Reed
Special to the Reporter

Waiting to board their plane to Paris, Dustin and Donna become anxious that were something to happen to them both, neither has a will. Not only do they worry about what happens with their property, but who would become guardian for their two children.

Sandra Reed

Creating a Valid Will Without the Formalities of Witnesses

Fortunately, Texas provides a solution which Dustin and Donna can employ: the holographic will. The holographic will is written entirely in the handwriting of the testator — the person creating the will.

What are the Other Requirements of a Holographic Will?

The testator must be 18 or older, in the military or married, if younger than 18. The testator must be of “sound mind.” This means having sufficient mental capacity to know what property is owned, what persons or entities he or she wishes to benefit from receiving property and how that property is to be distributed.

The holographic will must contain testamentary intent, that is, the intent to dispose of one’s property upon death to certain beneficiaries. It must be signed by the testator, but it does not have to be witnessed. It doesn’t even have to be dated.

Is a Holographic Will Recommended?

A holographic will is absolutely recommended under circumstances such as the one outlined above. It is not recommended if the time and circumstances permit creation of a formal will. Downsides to a holographic will make a formal will drafted by an attorney preferable.

When a holographic will is probated, it is necessary to have two witnesses who do not benefit from the dispositions in the will testify that the handwriting is that of the testator. In addition, proof must be admitted that the testator was of sound mind and met the age limitations when the will was made.

If the holographic will doesn’t name an executor and call for an independent administration, all beneficiaries will have to agree to name an executor and to have the probate proceed without the necessity to obtain permission of the probate judge for each action required to administer the estate.

A formal will prepared by an attorney knowledgeable in drafting wills and probating estates would name an executor to serve without bond, call for independent administration and contain a self-proving affidavit, making unnecessary all the extra proof noted in the above paragraphs.

Sandra W. Reed practices Elder Law in Somervell County, which includes handling probating of estates, drafting of wills, trusts, powers of attorney and deeds as well as estate and Medicaid planning. She lives on beautiful Chalk Mountain and can be reached at 254.797.0211; 817.946.2809 or at sreed1247@gmail.com.