If you’ve been looking to create your own estate plan, you’ve also probably come across resources that informed you that you can write your own will in California, and that you don’t need a lawyer to do so.
This is legally known as a holographic will. California is one of the states in the U.S. that legally recognizes holographic wills, so long as it complies with statutory requirements.
But just because it is possible to have a legally valid DIY will in California does not mean that it is advisable to do so, and bypass professional legal assistance entirely.
In this article we take a realistic look at DIY wills in California.
No, you don’t need a lawyer to write a will in California
This is the quick answer to the question a lot of people are probably entertaining. No, you don’t need a lawyer to write a will in California.
The only requirement for a holographic will is that it be written entirely in the testator’s handwriting, which can be validated during probate by a comparison to samples of the testator’s handwriting.
But consider for a second, the implications of this. The money you can save from not hiring a lawyer to prepare your will can be outbalanced entirely by the fact that a holographic will needs to be authenticated later on, preferably with the assistance of a forensic handwriting expert.
Where a traditional will has witnesses who can attest to its due execution, a holographic will may also be vulnerable to attacks during a will contest. If nobody saw you write the will, when you wrote the will, and your mental capacity at the time you executed it, a will contest is more than likely.
And finally, just because you can write your own will doesn’t mean you should. There is a big difference between writing a will that is valid in California, compared to a will that is effective for your unique circumstances.
After all, a will does not exist in a vacuum. You may know who you want to inherit your properties, but there are taxes, creditors, and legal regulations that also need to be accounted for.
How you structure your estate figures a lot into the substance of your will.
Holographic Wills vs Standard Wills
A holographic will, as we have already seen, does not require witnesses. The only requirement for its validity is that it must be written and signed entirely in the testator’s handwriting, and it clearly shows that it was intended to be the testator’s will (i.e., testamentary intent).
Most standard wills, on the other hand, need not be in the testator’s handwriting. It must be in written form and must be witnessed by two adult witnesses who are not interested persons in the testator’s estate. In other words, the witnesses are not inheriting anything.
A holographic will need not be dated. However, under California Probate Code Section 6111, if a holographic will is undated, and this results in conflict or inconsistency with another will, then it is invalid as to the inconsistency.
For instance, if you have two version of a holographic will, both are validated but undated, and a significant change was made with respect to a certain provision (e.g., in one version the testator indicated that he wanted his savings account to go to his daughter, and in another version he willed the same account to his son), then that provision will be considered invalid. The disposition of the savings account will instead need to follow statutory provisions.
Additionally, if a will was undated and there is reason to believe that the testator lacked testamentary capacity at any time when the will had been executed, the will may be considered invalid.
The Pros and Cons of a DIY Will
For some, a holographic will may actually be useful. If the testator is eligible as a small estate under California law, and there are no complicating factors such as minor children or beneficiaries with special needs, no business interests or real estate, then a simple holographic will might actually be quite useful.
A simple statement such as: “I hereby leave all my possessions to my children, to be divided in equal shares,” will do the trick.
But for a more complicated estate, a holographic will might leave a lot to be desired.
For instance, if the language used in a will is vague, ambiguous, or subject to interpretation, it might cause conflict that can lead to a will contest.
Or perhaps some assets have been left out of the will and there is some question as to who may claim it, that silence may lead to conflict among the beneficiaries.
Or perhaps the will was the testator’s only attempt at estate planning. Perhaps the testator did not prepare Powers of Attorney (POAs) for when he loses legal capacity to make his own decisions. Or the testator has some Transfer on Death (TOD) accounts and failed to update his beneficiary designations. In situations like these, the result is often an estate plan that looks complete on paper but leaves critical gaps in practice, which can lead to delays, disputes, or unintended distributions.
A will is just one variable in a comprehensive estate plan. If the testator failed to account for all assets and liabilities, dependents, or his own healthcare and medical needs, a valid holographic will is really not much of an effective estate plan.
Estate Planning is more than just a will
Yes, you don’t need a lawyer to prepare a will. But if you want a good and effective estate plan for your purposes, the assistance of an estate planning attorney is invaluable.
A good estate planning attorney can provide you with all the feasible options for the various parts of your estate, in light of any liabilities you may have or taxes you may need to pay. And they can help ensure that the will you do prepare, as well as other estate planning documents you may need, are valid and will pass muster when and if challenged.
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If you are thinking of preparing a will, or if you already have a will and would like to have it reviewed or updated, reach out to us today. We can help you understand whether your current plan truly reflects your wishes, identify any gaps or risks under California law, and make sure your estate planning documents are structured to work when your family needs them most.