Le Knapp: 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.

Executer

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.

Beneficiaries

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.

Signature

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.

Unforeseen
expenses

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.

Insufficient
provisions

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

When you need a probate or estate lawyer who works with handwritten wills in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.