For some, estate planning is now an emergency
As the pandemic spreads, I understand and share the anxiety of those on the front lines, whether healthcare or public safety or other essential services, who desperately need a will, but lack the time or ability to meet with a lawyer. They fear for a spouse or children, and don’t know what to do.
This is a difficult time for estate planning. Lawyers are overwhelmed with existing clients, slow to respond to new ones, and struggling to meet safely with anyone.
Online wills don’t work without witnesses
Services like 10minutewill.com allow you to go online and print a will in minutes. Unfortunately, you cannot sign or witness a will online. In Texas, printed wills require three signatures: the testator (you) and two disinterested witnesses. The online will’s no better than a grocery list without those witnesses. If family or other beneficiaries witness your will, they risk losing all or part of your gift to them. In safer times, you could ask neighbors, but that’s too dangerous now.
Holographic wills don’t need witnesses or a notary
Fortunately, there is an alternative, a holographic will. Texas respects a will with one signature, yours, if the entire will is wholly in your handwriting.
Start with a blank sheet of paper, without any printed words. Write out your will by hand. Cursive or hand printed, it does not matter, so long as someone, not one of your beneficiaries, can testify they recognize the handwriting as yours. When done, sign and date it.
A model holographic will
For a thoughtful model, see William D. Pargaman, A Guide to Executing Estate Planning Documents in Uncertain Times, https://www.snpalaw.com/Resources (3-25-20) (Attachment 2 — Holographic Will Form). With Bill’s permission, I’m sharing his form (replacing blanks with text, to discourage anyone from just printing and signing; remember, it must be wholly in the testator’s handwriting):
THIS GUIDE IS FOR EDUCATIONAL PURPOSES ONLY. NOTHING IN THIS GUIDE CONSTITUTES LEGAL ADVICE BY THE AUTHOR OR HIS LAW FIRM, NOR DOES THIS GUIDE CREATE ANY ATTORNEY-CLIENT RELATIONSHIP.
This will is not meant to be a “permanent” will. It is provided without any representations as to the appropriateness of the will for your particular situation. However, in most situations, it will be better than having no will at all.
This document is only a form for you to follow. THE ACTUAL WILL MUST BE COMPLETELY WRITTEN IN YOUR NORMAL HANDWRITING. You should sign and date it at the end.
Keep in mind, however, that if you execute this “temporary” will, it will be just as effective as any other will until you replace it. Therefore, don’t delay consulting your legal advisor and executing a will designed to meet your specific desires and situation!
Start with a blank sheet of paper, without any printed words. Write the following, in either cursive or print, so long as someone, not one of your beneficiaries, can testify they recognize your handwriting. Replace BOLD, CAPITALIZED items with your own name, information, and choices.
I, RUSSELL W. HALL, a resident of HARRIS COUNTY, TEXAS, revoke all my prior wills and codicils and declare this to be my will.
If I am married and my spouse survives me, I give my entire estate to my spouse.
If I am not married or my spouse does not survive me, I give my entire estate to my descendants who survive me, per stirpes.
If neither my spouse nor any descendant of mine survives me, I give my entire estate to my heirs.
I appoint my spouse as independent executor of my estate. If I am not married or my spouse is unable or unwilling to act, I appoint JOHN Q. CITIZEN as independent executor of my estate. No action shall be required in any court other than the probating and recording of this will and the return of an inventory and list of claims, if required. No bond shall be required of any executor. Any executor shall have all of the powers granted to trustees under the Texas Trust Code.
If appropriate, the executor may make distributions in any manner provided by law for distributions for the benefit of minors or persons under any other legal disability, including the Texas Uniform Transfers to Minors Act.
If my spouse does not survive me, I appoint JANE Q. PUBLIC as guardian of the person of any child of mine who is under a legal disability at the time of my death. If for any reason and at any time JANE Q. PUBLIC is unable or unwilling to act, I appoint JOHN Q. CITIZEN as guardian. No bond or other security shall be required of any guardian.
Executed APRIL 1, 2020.
RUSSELL W. HALL
Declaration of guardian for children
Note that the last paragraph of Bill’s form is a declaration of guardian for children. Feel free to omit that if you are certain you have no children and didn’t make any during the pandemic.
Why holographic wills are unpopular
On death, families are disappointed to learn that holographic wills require the testimony in probate court of handwriting witnesses, an avoidable expense in normal times, when a notary and two witnesses can instead quickly and cheaply complete a self-proving affidavit when the will is signed.
Lawyers dislike holographic wills because, in the interest of brevity, language typically is omitted regarding contingent trusts for minor or incapacitated beneficiaries, asset protection, and tax planning.
Let one or two people know where to find the original and how to locate at least two disinterested handwriting witnesses (better yet, three or more, in case any predecease you). If you have a lawyer, share the same information, send them a copy, and ask how to coordinate your beneficiary designations.
Replace your holograph ASAP
Following the all clear, promptly replace any holograph. While waiting on a lawyer, visit a notary to add a self-proving affidavit. A free one’s available at bellaireprobate.com/client-resources/holographic-wills/.
Lawyers, social distancing is not incompatible with high end estate planning. We’re inviting clients to make temporary pour-over holographic wills, which they write out by hand. At the same time, they will sign an inter vivos revocable trust form, which we draft but they print at home. Neither witnesses nor a notary are required, allowing clients to complete complex testamentary plans in isolation. As soon as circumstances allow, they will visit our office to replace the holograph with a more robust form, one that includes all the language appropriate to a (multi-)million dollar estate, that is attested by two witnesses, and that adds a self-proving affidavit.
For a pour-over version of Pargaman’s model holograph, read page 3 of A Guide to Executing Estate Planning Documents in Uncertain Times. I created my own, saved it to Word, and uploaded it to the file section of the Texas and Estate and Probate Lawyers Facebook group. Look for the March 27, 2020, 6:00 p.m. file there. If you’re not a member and don’t have time to navigate Pargaman’s paper, e-mail me your bar number, and I’ll forward a copy.
If you want to know why you can’t DocuSign wills or need to understand the limits of online notarization, read the companion paper, William D. Pargaman, Signing Without Signing: What Estate Planners Should Know About the Federal E-Sign Act and the Texas Uniform Electronic Transactions Act, https://www.snpalaw.com/Resources.