Tuesday, January 28, 2014

Writing a Holographic Will in Hawaii

A holographic will is a handwritten document that functions as a valid will and directs where your assets will go when you die. 

A holographic will is valid and legal in Hawaii.  Hawaii Revised Statute 560: 2-502 provides that a will may be valid even it is not witnessed and even if it is not completely in your handwriting.  The holographic will simply needs to have your original signature and the material portions of the document in your handwriting. 

For more information, click on this link to the statute that addresses holographic wills.
HRS 560: 2-502

Even though writing a holographic will is legal does not mean that it is advisable.  There are several reasons why you should not risk distributing your assets with holographic will. 

1.  Your signature may have to proven by extrinsic evidence.  
The probate court is not familiar with your signature or handwriting.  The person who distributes your assets will likely have to go to considerable trouble and expense to prove that your holographic will is actually yours.  Your personal representative may have to compare other documents with your signature or possibly hire a handwriting expert to prove that your signature is valid.  

2.  Nobody will know what you really meant. 
There can be many interpretations of a document and it is easy to challenge a holographic will in court.  Perhaps your handwriting is not clear or you forgot to include an asset in your will.  The probate court will not know if you intended to write your will that way or if you merely made a mistake. 

Even if you believe you are explicit in your will by saying "I leave everything to Dad," the court will not know if you meant your biological father or your distant second cousin who you met once and jokingly referred to as "Dad." 

3.  Your assets will have to go through the probate process.
A will gives instructions as to where your assets should go.  The probate process is the actual distribution of your property.  If you write a holographic will, your assets will likely be probated.  The probate process can be time-consuming and is open to the public.  Anyone who would like to see what assets you had and where they are going is able to do so.  Proper estate planning can circumvent the probate process with a trust. 

4.  Omissions. 
A holographic will may not include all of your assets.  If you do not specifically address the new truck you bought after you wrote your will, the court may not know where it should go.  With property legal advice, you may also forget to appoint a guardian for children, name an executor, provide for pets or name alternative beneficiaries.  A holographic will also typically fails to address end-of-life health care choices and financial decisions. 

A holographic will is not a wise choice for distributing your assets.  There are numerous potential pitfalls when writing a holographic will.  Obtaining competent estate planning advice with an estate planning attorney can save your heirs time and money.  Plan today. 

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