When Something is Better Than Nothing: The Case for the Holographic Will

Slide1Let’s be clear on this one point: If you don’t have a will, the state has one for you. That is, if you die without a will, your state’s law of intestacy will step in and make sure your assets go to someone. If you’re lucky, your desires will coincide with the state’s. If you’re lucky.

If you live in Wyoming, your assets will be distributed as follows, if there’s anything left after the payment of debts:

  1. If the deceased leaves a spouse and children, then 1/2 to the surviving spouse and 1/2 to children or their descendants.
  2. If the deceased leaves a spouse and no children or descendants of children, 100% to the spouse.
  3. Likewise if the deceased leaves only children or descendants of children, i.e., 100%
  4. No spouse or children? Then to father, mother, brother, and sisters or descendants.
  5. Finally, to grandparents, uncles, and aunts. (Wyo. Stat. § 2-4-101)

If you live in Utah, well, it’s quite different:

  1. The entire intestate estate goes to the surviving spouse if the deceased leaves no descendants or if all of the surviving descendants are also descendants of the surviving spouse.
  2. If some of the deceased’s surviving descendants are not also descendants of the surviving spouse, the the spouse gets the first $75,000 and 1/2 of the remainder. (Utah Code §75-2-102)
  3. What’s left, goes first to the descendants of the deceased per capita–i.e., three children? Each gets 1/3rd.
  4. If no descendants, then to the deceased’s parents, then to descendants of the parents (i.e., bothers and sisters), then to the grandparents, etc. etc. (§75-2-103)

It’s a little more complicated than what I’ve just described, but the broad outline is there. What isn’t there is the ability to disinherit or direct more money to one child than to the other. Nor is there the ability to prevent a spouse from whom you are separated but not divorced from receiving the surviving spouse’s share. Have a charitable bone in your body? Out of luck.

So what do you do if you don’t like the state’s plan for you? Make your own plan: draw up a will, using an estate planning attorney, I hope.

But if money or time is really short; if you’re in a pickle and need a will right now, this very minute, an attorney might not be an option. A holographic will might solve your problem. According to Dictionary.com, a document is holographic if it is “written wholly in the handwriting of the person whose signature it bears.” A holographic will is just that, with minor tweaks, depending on where you live.Holographic Will

If you live in Wyoming, a holographic will, to be valid, must be “written entirely in the handwriting of the testator and sign by the hand of the testator himself” (Wyo. Stat. §2-6-113).

If you live in Utah, such a will is valid if the “signature and material portions are in Testator’s handwriting” (§75-2-502(2)).

In neither case are witnesses necessary.

Thus, if you’re in a pinch, pick up pen and paper and write out your will. Tell the world how you want your property distributed should you die suddenly. Then sign it and put it where someone will find it. Tell someone about it. Then, once the emergency passes and you have more time and money, give an attorney a call and get it done right.

 

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