I am social distancing but still want to work on an estate plan. What can I do?
SUMMARY
During these times of social distancing, you can draft a handwritten, often known as holographic, will from the safety of your home. It is important to note that there are a number of requirements that must be met for a holographic will to be valid and a holographic will cannot replace a meeting with an attorney who has been trained to recognize specific problems related to estate plans and can review your unique situation to ensure your goals are accomplished. There are many formalities required in drafting and executing a valid last will and testament in Oklahoma, such as witnesses and notarization. One exception to these rigid formalities is a holographic will, which Oklahoma recognizes as a valid last will and testament to dispose of your estate.
For a holographic will to be valid in Oklahoma, it must be entirely handwritten, dated and signed, and plainly show that it was your intent for this document to be your last will and testament. Witnesses and a notary are not required for a holographic will. In fact, having your holographic will witnessed and notarized will likely invalidate the will. Further, if you are married, each spouse must complete their own holographic will as your spouse's handwriting (or any third-party handwriting) on your holographic will invalidates the will. It is important to not only identify yourself in your holographic will, but to also identify your spouse, all children and grandchildren of deceased children.
BACKGROUND
You may be wondering, why do I even need to worry about writing a holographic will right now? There are common misconceptions about what happens to your estate if you die without a will, including the belief that your surviving spouse will receive your entire estate. If you die without a will, Oklahoma law dictates how your estate will be distributed. In certain instances, Oklahoma law may distribute your estate to individuals you do not believe should be entitled to a portion. By way of example, if you die without a will, and are married but do not have any children, Oklahoma law directs that your surviving spouse receive all of the property acquired by the joint industry of the marriage, but only receive one-third (1/3) of the remaining estate while the remaining two-thirds (2/3) are split between your parents or, if your parents are deceased, your siblings. In fact, there are very limited circumstances where the surviving spouse will receive all of the estate.
There are also specific ways to disinherit or exclude certain individuals and, if done incorrectly, those individuals could still receive a portion of your estate. As a result, estate planning is very important. In these uncertain times, a holographic will is a great tool for ensuring your estate is distributed in the way you want.
IMPLICATIONS
There are a number of problems holographic wills may create. For instance, holographic wills may inadvertently omit common and necessary provisions of a formally prepared will, such as a residuary clause, and as a result, your estate may not be distributed as you had intended. Further, while you may think the directions in your will are clear, you may be unknowingly creating confusion. A common example of this is leaving everything to your "daughter" without specifically identifying your daughter's legal name. Additionally, since a holographic will does not require the usual formalities of a will, holographic wills can be attacked on multiple areas including, but not limited to, intent, handwriting, authenticity, and capacity.
We understand there are unique circumstances in your life and we want to make sure your estate planning goals are accomplished. Munson & McMillin is prepared to assist you with the drafting of a last will and testament and we can do so from a socially safe distance using a phone conference or video conference. A will is only one part of a complete estate plan and Munson & McMillin is capable of guiding you through these tough decisions to ensure that all aspects of your estate planning needs are met. However, if you are unable to meet with us and want to take immediate action by writing a holographic will, we understand. Therefore, if you choose to write a holographic will, please remember that holographic wills:
- must be completely in your own handwriting, with nothing typed and no one else's handwriting (no witness or notaries),
- must be signed and dated,
- must express your intent for it to be a holographic will,
- should identify your spouse, all children, and grandchildren of deceased children, even if you do not intend to leave anything to them, and
- are a great tool to use in limited situations but it cannot address every situation or concern that can be addressed by a properly prepared estate plan.
ABOUT MUNSON & MCMILLIN
Founded in 2007, Munson & McMillin, PC, is a mid-sized law firm with offices in Edmond and Tulsa, Oklahoma with a focus on the areas of estate planning, oil and gas title and litigation, construction defects and contract dispute, lien and lien foreclosure, surface title examination, cannabis law, and business litigation.
CONTACTING MUNSON & MCMILLIN
This publication is provided by Munson & McMillin. The information contained in this publication is not legal advice and should not be construed as such. Questions regarding the matters discussed in this publication may be directed to Tiffany Peterson, or any other Munson & McMillin lawyer with whom you have consulted in the past on similar matters. Ms. Peterson can be reached at 405-513-7707 or tpeterson@munsonmcmillin.com.