There are a lot of questions involved when planning for what happens to your estate after you pass away. A Will is a legal document that tells the court, most importantly:
- Who you want to be in charge of your estate after you die (your executor or personal representative); and
- Who you want to inherit your estate
If you die without a Will, how your estate will be distributed will be determined by Colorado intestacy law. Do you really want a stranger to decide who gets what from your estate?
This is where a Will comes in. By preparing a valid Will, you can designate someone you trust to administer your estate after you pass away, leave instructions for how your assets are to be distributed, and name guardians for any minor children you leave behind.
In most cases, in order for your Will to be accepted by a court, it will need to have been signed by you in the presence of two witnesses and notarized. However, certain Wills may be held as valid even if they are not witnessed and notarized—these are referred to as holographic Wills.
What is a Holographic Will?
A holographic Will is just a fancy way of saying a handwritten Will that has not been witnessed or notarized. This type of Will is legal under Colorado law, as long as it fulfills the following requirements:
- The material parts of the Will have to be written in your own handwriting;
- The Will must be signed by you; and
- There must be sufficient evidence that you intended the document to be your Last Will and Testament.
Holographic Wills are often the result of circumstances where the testator (the person who created the Will) was near death and had very little time to prepare a Will, or when he or she was isolated and alone.
Why a Holographic Will Should be Avoided Whenever Possible
A holographic Will may be honored by the court to fulfill your testamentary wishes. But, while this may seem like a simple and inexpensive way to distribute your estate, you shouldn't be penny-wise and pound-foolish.
To explain, let's assume say you retain a lawyer to help you write your Will. You meet with the attorney and he quotes you $1500 to prepare your Will along with a professional estate plan. But, because you are both intelligent and frugal, you believe that you can save a few dollars by preparing the Will yourself.
Let's also assume that you aren't married, have no children, and hate your siblings. Therefore, you would like to leave your entire estate to your best friend James, who is like a brother to you.
So, you search the internet for the requirements for a holographic Will and draft it, naming James as your executor and the beneficiary of your entire estate. This is all fine and dandy until James (the executor of your estate) has to notify your family in the probate proceeding, which is required, even though they are not named in your Will.
After being notified, your family may contest your Will, perhaps saying that James had unduly influenced you, that your Will is invalid because you weren't competent when you signed it, and/or that your estate should rightfully go to your family. Then, because there wasn't an attorney involved who could attest to your testamentary capacity and intent, the Will contest may have to go all the way to trial.
As you probably already know, trials can get very expensive. So, you may have saved the $1500 by writing the Will yourself, but your estate may end up paying tens of thousands of dollars in litigation costs. And even worse, there is a chance that your wishes to leave your entire estate to your friend James will not be fulfilled.
Even if you get lucky and the court finds in your favor, you will still have sent James through a long, stressful, and expensive process that could have been avoided with a little bit of basic planning. This is why you should never rely on a holographic Will or any other do-it-yourself estate planning.
The Importance of Hiring an Experienced Colorado Estate Planning Attorney to Prepare Your Will
You have worked hard to acquire the assets you own. But, without the proper documents in place, those to whom you wish to leave those assets, may not receive them.
A Will should be prepared by an attorney. It is a relatively inexpensive procedure and not very time-consuming. When a Will is prepared by an experienced attorney, it will almost always be accepted by the court, provided that all statutory requirements are met.
If you really care who inherits from you, consult with an experienced Colorado estate planning attorney, who can draft a Will for you that has the best chance of succeeding in having your estate distributed in the manner that you wish.