Q. Is a holographic will accepted in New Jersey if they’re signed and material provisions are in the handwriting of the testator? Does this mean the entire will has to be written by the testator or can one buy a form and fill in the blanks in the testator’s handwriting?
A. We’re glad you’re making sure you have this right before it’s too late.
A validly executed will in New Jersey is a document in writing, signed by the testator — the person whose wishes are set forth in the will — or by another individual in the testator’s conscious presence and at his/her direction, said Yale Hauptman, an estate planning attorney with Hauptman and Hauptman in Livingston.
Hauptman said the will must also be signed by two individuals within a reasonable timeframe after each individual witnessed the signing by the testator or the testator’s acknowledgment of the will.
“The law sets forth that a will that doesn’t comply with this law can be considered valid as a writing intended as a will, whether or not it is witnessed, if the signature and material portions of the document are in the testator’s handwriting,” he said. “This is what is commonly referred to as a holographic will.”
Hauptman said the statute doesn’t define what is meant by “material” portion. Although the entire will doesn’t need to be in the testator’s handwriting, a “fill in the blanks” form may not meet this requirement, he said.
It all depends on how much is pre-printed and how much is required to be filled in by the testator.
“Material portion certainly would include the part of the will that deals with the distribution of one’s assets,” he said. “A pre-printed form that says `I leave my estate to _______ ‘ where you simply write in a name, would likely fail the `material portion’ test.”
Hauptman said holographic wills are generally more difficult to admit to probate and are more likely to be challenged by family members and heirs. The cost saved in “doing it yourself” rather than going to an attorney experienced in drafting wills is small in comparison to the legal fees spent after death by the family fighting over whether your will should be considered a writing intended as a will or whether your wishes were clearly stated in the document, he said.
There are also many issues that people are not even aware of when drafting wills.
“Often when clients relate to us their wishes, thinking they have covered everything, we raise questions they never considered or show them how their wishes are not as clear as they initially believed,” he said. “A common example is one in which a person wants to leave something to a daughter-in-law because he wants to treat her `like my daughter.’ Doing that, however, can trigger New Jersey inheritance tax where none would be owed if left entirely to the son.”
Hauptman said it’s “important to know what you don’t know.” Creating a holographic will may sound deceptively easy, but you won’t know if it will be successful until it is presented for probate and by then, it will be too late to fix it, Hauptman said.
“You’ve now left a legal mess for your loved ones to resolve,” he said.
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