Is a Handwritten Will a Smart Idea?
Louisiana recognizes hand written wills, which we call an “olographic will”. Under Louisiana law, in order to be considered the legal “form” of an olographic will, three (3) conditions must be met.
- The olographic will must be written entirely in the handwriting of the testator (no typing);
- The olographic will must be signed by the Testator in the Testator’s handwriting; and
- The olographic will must be dated.
The potential issue with a hand written will is that it must be “proved” before the court. At least two (2) witnesses who are able to recognize the testator’s handwriting must testify in an affidavit under oath, that the handwriting was indeed the testator’s. This is an additional step in the probate process.
Furthermore, an olographic will is much more likely to be subject to a challenge. A relative can argue before the court that the handwritten document was not written by the testator. This could necessitate a trial with handwriting experts being brought in to testify and lengthy testimony and other evidence presented.
So if you think there is even the remotest chance that your will would be challenged, have it drafted by a Louisiana attorney (preferably a Board Certified Estate Planning and Administration Specialist). The vast majority of Louisiana attorneys are aware of the form requirements for a valid will under the laws of this state. Nevertheless, just because every attorney in Louisiana is licensed to draft wills, it does not mean that every attorney should necessarily be consulted. My suggestion is to focus on attorneys that practice in this area of the law almost exclusively. Those attorneys are more likely (although this is not guaranteed), to know about potential estate planning pitfalls and problems such as asset protection and Medicaid Long Term Care.
Rather, a handwritten will, a “statutory will” may be the smart idea. It does not have to be proved before the court, is assumed to be validly confected and generally meets the form requirements of Louisiana law (assuming there is the required “attestation clause”). This alone can potentially save tens of thousands of dollars in litigation expenses.
Think Advisor’s May 20 article entitled “Relying on Holographic Wills Is a Terrible Idea” says that, while a olographic will (called holographic in the article) could be valid in your state, there are many instances where attempts to comply with the state probate laws failed.
Keep in mind that if your olographic will is declared invalid, the court will use the next most recently valid will, and if there is no will, then the intestacy laws of Louisiana. Thus, your handwritten will may not be a smart idea at all.
This makes it problematic for someone who makes a will — handwritten or not. That is because the maker of the will intended for the assets to pass in a certain way, and perhaps not how Louisiana’s laws say.
Some people are not too concerned with making a will. However, that may be a result of a person not having many assets, or the individual relying on will alternatives, like intestacy laws, joint bank accounts, payable or transfer on death accounts (which can be dangerous; read my blog post: “What is a POD Account: A Litigation Time Bomb” ), and certain deeds, such as real property owned tenancy by entirety (property owned by a married couple).
For specifics and how they might apply to your particular circumstances, talk to experienced estate planning attorney Ted Vicknair by BOOKING A CALL.
Reference: Think Advisor (May 20, 2021) “Relying on Holographic Wills Is a Terrible Idea”
