What If I Use a Napkin?

By Chris Tymchuck
Founding Attorney

We’ve all heard the stories.  A dying person writes out a will on a napkin or a piece of wood.  But are wills that are entirely handwritten by the creator, dated, and signed without witnesses valid in Minnesota?  Generally, such wills – called holographic – are not valid here.

As explained in my post on how to create a valid will in Minnesota, your will must be in writing, signed and witnessed by two people.  What does it mean to witness a will?  The two people you select are essentially making a promise to the probate court that they actually saw (witnessed) you sign the will.  In order to make such a promise they must be present at the time, and actually see, you sign the will.

An exception to the rule on holographic wills is that if the handwritten will was validly executed in a state that does allow such wills (e.g. Texas) and the will maker then moves to Minnesota and dies with only the Texas will in place.  But this exception only applies to a small number of people.

Don’t take the risk

I am not saying that you can’t draft your own will.  But if you do, please be sure that your will is going to be valid in probate court. You still need to sign your written will in front of two people who will then sign stating that they witnessed your signature.  Further, you should execute a self-proving affidavit to deter others from contesting the validity of your will.

If your will is held invalid (and you don’t have a prior valid will), the probate court will proceed to distribute your property as if you didn’t have a will.  The court will then turn to the only will you have left – the one the State of Minnesota created for you – and give away your stuff under this new will.  As discussed in prior posts, your Minnesota will does not recognize your nontraditional family.  Take the time to create a valid will to ensure that your loved ones have some protection.

About the Author
As a Minneapolis Estate Planning and Probate attorney I help build and protect families through the adoption, estate planning, and probate processes. I also have experience working with families on issues related to their small businesses. I know how difficult it is to find time to plan for the future and I am here to help walk you through it.