During these difficult and trying times, I am certain that each of us has considered our own mortality. I recently had a Greenbrier East High School classmate die from COVID-19, which really hits home since, like me, he was in his early 50s. I still cannot get over reading that Greenbrier County lost 12 people in 24 hours from this ruthless pandemic. Hopefully, all of this pain and uncertainty will be over as soon as possible.
If you are wanting to do some estate planning, certainly the best practice when considering how to dispose of your property post-death is to see a competent, licensed and practicing attorney. The preferred method is to meet with the attorney, go over your real and personal assets, life insurance, liabilities, and the like, and create a strong will that cannot be easily challenged or overturned in court.
Trust me, once you are gone, people can and will at times fight over your estate. You “can’t take it with you” but others may try to take it once you have passed.
If for some reason, you cannot get to an attorney, consider the following option in West Virginia. A holographic will is a will written wholly in your handwriting. Remember when people used to actually handwrite notes, letters and the like? This is the same concept. With a will like this, there should be no other person’s writing on the will. The holographic will must be signed and preferably dated. Generally, with a will, the testator (the person writing the will) must be of sound mind and be able to understand the property they possess and dispose of when writing the will. Also, it is important there is no undue duress or influence on the testator when writing the will. Undue influence can come from anyone and it occurs sometimes when a testator is feeble and subject to someone taking advantage of them.
In the end, courts primarily look to a testator’s intent and a court will make efforts to follow a person’s dying last wishes unless there are abrogating circumstances.
If you decide to write a holographic will, do so only once you have had an opportunity for calm and quiet reflection. If you have a prior will and intend to revoke it, state that in the will. Also, it would be wise to include a line about your current mental state and capacity to make the will. Only bequeath that which you own and make sure to have a residuary clause at the end that leaves any unaccounted for property to the person or entity of your choice.
Write out the will only in your handwriting, sign and date it, and place it in an envelope and in a location where only you and one or two very trusted people know where it is. You should also choose someone to be the executor of your estate and a replacement if that person is not available. It is also common for testators to appoint an executor/executrix to hold that position without the requirement of posting a bond. At some point, two witnesses will need to verify your signature so consider that as well.
The Guinness Book of World Records lists an impending death note written on a wall: “everything to wife” as the shortest known will on record. A man in Canada used a pocket knife and scratched his will into the bumper of a tractor under which he was trapped. He wrote: “In case I die in this mess, I leave all to the wife. Cecil Geo Harris.”
The bumper was removed, brought to court, and his holographic will was upheld.
There is no guarantee that once you die, your holographic will be used or will hold up in court. As mentioned previously, it is best to seek out a licensed, practicing attorney for creating a will and estate planning. Stay safe and healthy and as the saying goes, this too shall pass.
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