Is a Holographic Will Valid in Michigan?
It’s not hard to make a valid will. In Michigan, all a will needs in order to be valid under the law is to be in writing; signed by the person making it (or by someone else at that person’s conscious direction); and signed by two witnesses to either the signing of the will or the testator’s acknowledgment of their signature on the will. Of course, the testator (the person making the will) must have the legal capacity to make a will, also known as testamentary capacity.
Most people observe the formalities above with the help of an attorney. There are good reasons for that, which we’ll discuss. But sometimes a will that does not meet the criteria for a Michigan will can still be valid. Handwritten wills, also called holographic wills, are recognized in a number of states, including Michigan.
What is a Holographic Will?
A holographic will is a will which is dated, signed by the testator, and of which the material parts are in the testator’s handwriting. It does not need to be witnessed. It is also necessary that it be clear that the testator intended that handwritten will to be his or her last will and testament. Evidence of that intent may come from language in the will, or from extrinsic evidence (evidence outside of the will).
Theoretically, you could grab a pen and a bar napkin and jot yourself down a valid holographic will while you enjoy a cocktail at your favorite watering hole. The question is not, “Can you do a handwritten will,” or “Is a handwritten will valid in Michigan,” but, “What is my best possible option for achieving my estate planning goals?” Unless you’re trapped in an isolated cabin with no food, no way to call for help, and no escape, the answer to that question is unlikely to be a holographic will. So before you reach for that cocktail napkin, read the rest of this blog post to discover why.
Three Reasons Not to Make a Holographic Will in Michigan
It’s easy and inexpensive to make a holographic will—so why don’t more people do it? The answer lies in the reasons most people make a will in the first place: to provide for their loved ones and protect their financial resources. While a holographic will may be better than no will at all, it may also create some of the very problems you wanted to avoid.
Because a holographic will is not witnessed by others, there is a higher likelihood that a family member will contest or challenge the will, alleging that it was not really written or signed by you. Will contests are costly, time-consuming, and often create or increase conflict between family members. All of that is the exact opposite of what you are seeking to achieve by making a will.
A second problem with a holographic will is that you might easily use language that is unclear, incomplete, illegible, or which conflicts with other beneficiary designations. If the will’s meaning is not plain, it could lead to the need for probate litigation, which could consume estate assets and spark conflict among your loved ones, who might argue for different interpretations of the will’s language.
Holographic wills are also rarely as thorough as wills prepared by an attorney. For instance, you might write a will that leaves all your property to your niece and two nephews, but neglect to say what you want to happen if one of them dies before you. Would the gift be split among the two survivors, or among the deceased beneficiary’s children? If the answer is uncertain, you can guess what happens next—the family members head back to court, consuming time and money, and possibly relationships.
Lastly, any will that is submitted to probate needs to be authenticated. That is, it needs to be established that it really is the testator’s last will and testament. Authentication is typically more difficult with a holographic will because often the only person who was present when it was made was the deceased.
Avoiding the Problems Associated With a Holographic Will
If you briefly considered making a holographic will in order to save time and money, hopefully the issues described above have given you second thoughts. An estate plan is an investment in your family’s future. The legal problems caused by a handwritten will could easily end up costing more in legal fees than simply making a comprehensive estate plan in the first place. In addition, having an estate plan prepared by an experienced attorney can help you prevent the family discord that an unclear handwritten will might cause.
To learn more about holographic wills and Michigan estate planning in general, please contact Suzanne R. Fanning PLLC to schedule a consultation.