Handwritten Wills can be admitted to probate and administered just like any other written will. However, there are some critical differences in how a person is appointed as the personal representative for an estate where there is a handwritten will.

We’ll first talk about the requirements for a standard will, what happens if those requirements are only partially met, and what happens after a person is appointed as the personal representative where there is a handwritten will.

Requirements for a Will

Just because a document that says “Will” is handwritten, does not make it a will. Generally speaking, a will needs to meet three requirements:

  1. In writing
  2. Signed by the testator
  3. Signed by at least two individuals who witnessed the signing of the will [mfn]N.J.S.A. 3B:3-2(a) (1) in writing; (2) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction; and (3) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction;[/mfn]

Here, “in writing,” means that the will is on paper and is not oral.[mfn] In re Parker’s Will, 47 N.J. Super 241, 135 A.2d 678 (A.D. 1957), affirmed 26 N.J. 3521, 140 A.2d 69. [/mfn] It is not enough to verbally tell someone what you want to happen. You must put what you want to happen down on paper. An oral “Will” cannot be enforced, because it’s not a Will under New Jersey law.

If a Will is handwritten and complies with all three of these standards, then the Will is a standard testamentary document and can be admitted to probate just like a typed will. (Though the Surrogate may require a court order to do so.)

What if the requirements aren’t met?

However, where the handwritten document does not comply with the three requirements above, but the document might be considered a “holographic will” where it meets these requirements:

  • the document is intended as a will,
  • material portions of the will are in the testator’s handwriting, and
  • the document is signed. [mfn]N.J.S.A. 3B:3-2(b) A will that does not comply with subsection a. is valid as a writing intended as a will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting.[/mfn]

The crucial part of having a document considered a “holographic will,” is whether or not the person who wrote the words intended the words to be considered a will. It is essential to establish that the document was intended to be a will.

The person’s intent can be determined by:

  • looking at other documents showing that the document is meant to be a will
  • Other documents that are NOT in the person’s handwriting
  • Portions of the same document that are not in the person’s handwriting

What Happen When Only Certain Portions of the Will are Handwritten?

If only certain portions of the will are handwritten and other parts of the Will are pre-printed, then New Jersey uses the “surplusage standard.” This standard means that the court ignores all portions of the will that are preprinted and only apply the parts of the will that are handwritten.

If the words that are handwritten do not create in intelligible Will, then the document cannot be considered a holographic will and the court will not admit the document to probate. This means that the estate will follow according to the intestacy statutes.

How to Probate a Holographic Will

If you have a standard Will, then the Will is admitted to probate by the Surrogate of the county where the decedent lived. If you have a Holographic Will, then the person seeking to be the personal representative needs to apply to the Superior Court in the county where the decedent was domiciled at the time of their death.

How to Administer a Holographic Will

Once the judge orders the holographic will to be admitted for probate, the will is administered just as any other estate would be administered.

Share:

Share on facebook
Facebook
Share on twitter
Twitter
Share on pinterest
Pinterest
Share on linkedin
LinkedIn

Leave a Reply

Your email address will not be published. Required fields are marked *

plan for tomorrow so you can enjoy today

When you create you Last Will and Testament (or Living Trust) using the Giving Forward Program, you get organization, customization, and an easy to follow program that walks you through the four-step process so you are in control and get to create your own unique and customized Giving Forward plan.

Apply Now

Self-Service and DIY Legal Templates

On Key

Related Posts

Create Your Quarantine Routine

What do you think of when you hear the word “routine?” Does it make you think of monotony and boredom? Or does it make you feel serene, calm, and have peace of mind?

Up until a few weeks ago, every day was the same. Wake up, go to school/work, eat, school/work, come home, dinner, bed. That’s all changed and routines have flown out the window!

Just think about how powerful you could be if you tweaked your routine to allow more time for you to build your legacy in the world.

What happens to Alice if I die? A Look at Gertrude Stein’s Last Will and Testament

Gertrude Stein died in 1946, just three days after writing her Will. No one imagined that 21 years later, her life partner, Alice Toklas, would die impoverished, half-blind, and half-deaf. During the later years of her life, Alice relied upon the goodwill and solicitations of friends to keep a roof over her head. What went wrong with Alice’s Will that resulted in the of her life dying in poverty?

Is it worth creating an Advanced Health Care Directive if a hospital issues a blanket “do-not-resuscitate” order?

In March of 2020, at the height of the COVID-19 Pandemic in NJ, it was been reported in several newspapers that there are whispers and some outright discussions about hospitals and states issuing blanket “do not resuscitate” orders for patients having coronavirus. Can hospital override the medical wishes outlined in your living will? If so, how? If not, how can you protect yourself?

How to talk to your parents about aging and dealing with their “stuff”

One of the biggest questions we get around the holiday season is … “How do I talk to my parents about their stuff?”

And this question is then awkwardly followed by, “Look, I don’t really want or expect anything from my parents, but I just don’t know what to do if they get sick or … fall down when I’m not home and …. you know…” and the person then trails off.

It’s hard to talk to your parents about them getting older and becoming more frail. Here are a few ways to start that discussion.