In my prior two blogs I discussed the witness requirements in Tennessee for a traditional, typed out will, and a nuncupative will. Now, let us turn our attention to holographic wills.
Holographic wills are wills that are handwritten. Tennessee does recognize holographic wills that meet the statutory requirements (not all states recognize them). The statute governing the requirements for a holographic will in Tennessee is very short. T.C.A. § 32-1-105 states the following: “No witness to a holographic will is necessary, but the signature and all its material provisions must be in the handwriting of the testator and the testator’s handwriting must be provided by two (2) witnesses.” In sum, to have a valid holographic will, the testator must sign the will and all material provisions must be in the handwriting of the testator. When the will is probated, the probate attorney will then have to obtain the sworn statement of two witnesses who can verify that the handwriting is that of the testator. There are two areas where I often see an attempt at a holographic will fail to meet the statutory requirements. First, all material provisions are not in the handwriting of the testator. This happens a lot with “fill in the blank” type of wills. If most of the will is in the testator’s handwriting but a certain material provision is typed, that is not a valid holographic will. Second, the testator didn’t sign the will. Family members will sometimes bring in a handwritten list that their loved one had made stating things like, “I leave my diamond ring to my daughter,” but unless that list is signed it has no chance of being a holographic will.
Based on this blog and the previous two, you can probably see it is not a good idea to try to distribute your assets without the aid of an attorney. I am truly saddened for the family when I see an attempt at a will that is simply not valid in Tennessee. In those situations, the way that the property must be passed under Tennessee law is often obviously not how the deceased person wished it be distributed.
We would love to have a commitment-free conversation with you to discuss how we might be able to serve you in our estate planning practice. Whether you could benefit from a simple Will, powers of attorney, or some type of trust, we are here to walk you through the process.
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Erika Piland, Attorney at Law