How to Create a Valid Virginia Holographic Will

May 15, 2023 – Matthew S. Akers & Douglas McCarthy

Are you a Virginia resident without a will because you don’t see the need for one? You are not alone. Surveys continue to show that 1 out of 4 Americans without a will say nothing would motivate them to get one, and more than 40% say they won’t bother until their life is in danger. And 2 out of 3 Americans do not have any estate planning documents.

Despite these statistics, it’s essential to be proactive about creating a valid Virginia will, whether a holographic or a formal will drafted by a wills and estates lawyer, to ensure any assets are distributed according to your preferences rather than being subject to state intestacy laws.

In this blog, we’ll share what you need to know about creating a valid Virginia holographic will, the advantages and disadvantages, and how a wills and estates lawyer can help.

Contact the will attorneys at McCarthy & Akers, PLC, at (540) 722-2181 to schedule a consultation to ensure your holographic will is valid and includes all the necessary information to protect your estate – no matter how small. We’re here to help you every step of the way. Let us go to work for you!

What is a Holographic Will?

A holographic will is a type of will that is entirely handwritten, signed, and dated by the testator, (the person making the will). Unlike a traditional will, which is typed and requires witnesses, a holographic will is more informal and personal.

Legal Requirements for a Holographic Will in Virginia

In Virginia, there are specific legal requirements for a holographic will to be considered valid:

Age and Mental Capacity

When creating the will, the testator must be at least 18 years old and of sound mind.

Written Entirely by Hand

The holographic will must be entirely handwritten by the testator. Typed or pre-printed text is not allowed.

Testamentary Intent

The document must clearly indicate the testator’s intent to create a will and distribute their assets upon their death.

Signature

The testator must sign the will, usually at the end of the document.

Witnesses

In Virginia, a holographic will does not require witnesses to be present when the will is signed. However, after the testator’s death, at least two disinterested witnesses must testify in court that the handwriting and signature are those of the deceased testator.

Steps to Create a Holographic Will

While it’s always better to work with an estate planning attorney when drafting a will, it’s essential to know how to create a holographic will in Virginia in case of emergencies or other situations where legal assistance is unavailable.

Write the Entire Will in Your Own Handwriting

In Virginia, a holographic will must be completely handwritten by the testator. Typed or printed text is not allowed and may result in the will being deemed invalid.

Clearly Identify Your Beneficiaries

Be specific when describing your beneficiaries, using their full legal names and addresses to avoid confusion or ambiguity. Describe the relationship between you and the beneficiary, such as “my spouse,” “my son,” or “my friend.”

Detail the Distribution of Your Assets

Specify how you wish to distribute your assets among your beneficiaries. Be precise when describing each asset, including real estate properties, personal belongings, bank accounts, investments, and other valuable items.

Appoint an Executor

Designate a trustworthy individual as the executor of your estate, responsible for managing and distributing your assets according to the terms of your will. Include the executor’s full name and contact information to ensure clear identification.

Include Guardianship Provisions (if applicable)

If you have minor children or dependents, specify who you want to appoint as their guardian in the event of your death. Discuss this with the potential guardian beforehand and obtain their consent.

Sign and Date the Will

The testator must sign and date the holographic will, preferably at the end of the document. Although Virginia does not require the will to be dated, including the date can help avoid potential challenges regarding the will’s authenticity or the testator’s mental capacity at the time of signing.

Witnessing Requirements for Holographic Wills

In Virginia, holographic wills do not require witnesses to be present during the signing or to attest to the testator’s signature. However, during the probate process, the court may require at least two disinterested witnesses to testify to the authenticity of the testator’s handwriting.

These witnesses should have no direct interest in the will, such as being beneficiaries or having any potential financial gain from the will’s provisions.

Pros and Cons of Holographic Wills

There are advantages and disadvantages to using a holographic will:

Advantages

A holographic will might be advantageous in specific situations where creating a formal, attorney-assisted will may not be possible or practical. Some of these scenarios include:

  • Emergency Situations: In urgent or life-threatening situations, such as an accident, sudden illness, or imminent danger, an individual may not have the time or resources to consult an attorney and draft a formal will. In these cases, a holographic will can serve as a quick and temporary solution to express their wishes regarding their estate distribution.
  • Limited Access to Legal Assistance: In remote areas or situations where access to legal services is limited or unavailable, a holographic will might be the only viable option for an individual to outline their estate distribution wishes. While not ideal, it can still provide basic protection for their assets and beneficiaries.
  • Financial Constraints: Some individuals may not have the financial means to afford an attorney’s services for drafting a formal will. A holographic will can be a cost-effective alternative in such cases, providing a basic level of estate planning without the associated legal fees.
  • Simplicity and Privacy: A holographic might offer a simple and private solution for individuals with minimal assets and straightforward estate planning needs. However, it is essential to consider the potential risks and challenges associated with holographic wills, such as legal validity and potential disputes.

Disadvantages

There are several disadvantages associated with creating a holographic will, especially when compared to a formal will drafted with the assistance of an estate planning attorney. Some of these disadvantages include the following:

  • Legal Validity: Virginia has strict requirements regarding the handwriting and signature of the will. If your holographic will does not meet these requirements, it could be deemed invalid, leading to unintended consequences and disputes among your beneficiaries.
  • Ambiguity and Interpretation Issues: Without the guidance of an estate planning attorney, it’s easy to make mistakes or use unclear language in a holographic will. This can lead to confusion, misinterpretation, or disputes among your beneficiaries, potentially resulting in a lengthy and costly legal battle.
  • Limited Scope: Holographic wills typically lack the comprehensive nature of a formal will. They may not address all aspects of your estate, such as digital assets, tax planning, funeral arrangements, or provisions for unique situations like blended families or special needs beneficiaries. This limited scope can lead to issues and disputes when administering your estate.
  • Lack of Witnesses: Unlike formal wills, holographic wills do not require witnesses at the time the testator signs the will. While this may seem like an advantage in terms of simplicity, it can create issues regarding proving the will’s authenticity. Without witnesses, it may be more challenging to verify that the testator indeed wrote the will and that they were of sound mind when they created it.As mentioned earlier, after the testator’s death, at least two disinterested witnesses must testify in court that the handwriting and signature are those of the deceased testator.
  • Probate Complications: Holographic wills are more likely to face challenges during probate. Since they are handwritten and may not adhere to standard legal formatting, it can take longer for the court to review and validate the will. A holographic will is more susceptible to challenges from potential heirs or creditors, which can further delay the probate process and increase costs.
  • Not Suitable for Complex Estates: A holographic will is generally not a suitable option for individuals with substantial assets or complex estate planning needs. In such cases, it is crucial to seek the guidance of an estate planning attorney who can help create a comprehensive plan that adequately addresses all aspects of your estate and minimizes potential issues.

While a holographic will might come into play in certain situations, it is generally not recommended as a long-term solution for estate planning, especially if you have significant assets or complex estate planning needs.

A formal will or trust, created with the guidance of an estate planning attorney, can provide better legal protection, ensure that your assets are distributed according to your wishes, and minimize potential disputes and complications.

Dying Without a Will in Virginia

If you die without a valid will (whether holographic or formal), you are considered to have died “intestate.” In Virginia, intestacy laws dictate how the deceased’s estate will be distributed. The distribution process is based on the deceased’s surviving relatives and their relationship with the deceased.

By creating a valid will, whether holographic or formal, you can ensure that your assets are distributed according to your preferences rather than being subject to state intestacy laws.

Have You Created a Holographic Will in Virginia? Let McCarthy & Akers Review It to Protect Your Assets

As a leading estate planning law firm in Winchester, VA, our team at McCarthy & Akers can help ensure your holographic will meets all the necessary legal requirements and protects your assets according to your wishes.

If you created a holographic will due to an emergency situation, let us help you take the first step toward securing your family’s future. Our wills attorneys can help draft a more formal will or trust to provide better legal protection, ensure any assets are distributed according to your wishes, and minimize potential disputes and complications.

To schedule your consultation, contact us at one of our offices in Strasburg, Front Royal, Winchester, and Manassas at (540) 722-2181 or online. Our team of legal professionals is dedicated to providing personalized attention and comprehensive services to help you achieve your estate planning goals.  Let us go to work for you!

Additionally, we provide a complimentary guide titled “3 Most Common Threats to Your Estate and Family’s Future.” To obtain your copy, please visit this link to download it.

Copyright © 2023. McCarthy & Akers, PLC. All rights reserved.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.

McCarthy & Akers, PLC
302 W Boscawen St.
Winchester, VA 22601
(540) 722-2181
https://mccarthyakers.com/

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