Tip – Idaho recognizes Holographic Wills.
When I present seminars on estate planning, I almost always get asked the question, “Can I just handwrite my own will?” The answer to this question is yes. It is called a Holographic Will.
Idaho Code § 15-2-503 states, “A will…is valid as a Holographic Will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator,” the person writing the will.
The Idaho Supreme Court in the case of In re Estate of Webber, 97 Idaho 703, (1976), added that the person making a Holographic Will must have testamentary intent. The Court defined testamentary intent as follows: The test of the testamentary character of an instrument “is not the testator’s realization that it is a will, but his intention to create a revocable disposition of his property, to accrue and take effect only upon his death, and passing no present interest. In other words, while the testator is alive the property remains his. It only passes to his beneficiaries after his death.
There are three elements to a valid Holographic Will—the will must be signed, the signature and the material provisions must be completely in the testator’s handwriting, and the testator must have testamentary intent. If you are considering writing a Holographic Will, here are some of the mistakes I have seen made over the years.
1. People will download a will from the internet and fill in the blanks. This can be a valid will if you comply with all the statutory will requirements, but it doesn’t qualify as a Holographic Will because the material provisions are not in the testator’s handwriting. A related mistake is when a friend or child writes the material provisions of the Will and has the testator sign it.
2. Another common problem with Holographic Wills is they are frequently ambiguous. Here is an example: A man married to his second wife wrote in his Holographic Will, “I give the house to my children after we have passed away.” The first problem is that he doesn’t have authority to dispose of the house. He only has a 50% interest in the house since it is community property. His wife has the other 50% interest in the house. Second, when is the gift to go into effect, at his death or after both have died? If it is after both have died do the kids have any rights to protect their interest while his
wife is still living in the house? These kinds of questions frequently lead to expensive litigation.
If you decide to write a Holographic Will, remember, you must sign and write the material provisions of the will in your own handwriting and do so with testamentary intent. Also make sure that you are clear in naming your personal representative and to whom you want your property distributed after you pass.
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Tom Packer is an Elder Law Attorney serving all Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.
August 2024