Dear elodious-ga;
Thank you for allowing me to answer your interesting question. You
will note that our disclaimer reminds our customers that our answers
are not intended to substitute for informed professional legal advice.
Your best course of action would be to consult an attorney.
First some defining background:
?Holographic Wills are handwritten wills prepared by a testator in his
or her own handwriting. Holographic wills do not have to be signed in
front of witnesses or notarized. A holographic Will may be admitted to
probate if the testator's handwriting can be proved by the testimony
of at least one witness who was personally acquainted with the
testator and has personal knowledge of the testator's handwriting.?
SUPERIOR COURT OF CALIFORNIA
http://www.scselfservice.org/probate/prop/HowtoFileaPetitionforProbate3.htm
When a person dies the property his personal property is the
jurisdiction of the state in which he resided. If he leaves a will the
real property is generally disseminated according to his wishes in
keeping with the laws of the state in which he lived. However, in many
cases out of state property is filed to Probate in that state and is
subject to the laws of the state in which the property is located.
With that said, the question now is whether California and Mississippi
BOTH recognize holographic wills as valid probate instruments. Let?s
begin here:
California does in fact recognize a handwritten Will if the instrument
is executed correctly:
California Probate Code
PROBATE CODE SECTION 6110-6113
http://caselaw.lp.findlaw.com/cacodes/prob/6110-6113.html
The California State Bar warns that the will must be ENTIRELY written
by hand and any deviation from this statute can invalidate the will:
?A handwritten or holographic will. This will must be completely in
your own handwriting. You must date and sign the will. Your
handwriting has to be legible, and the will must clearly state what
you are leaving and to whom.
A handwritten will does not have to be notarized or witnessed.
However, any typed material in a handwritten will may invalidate the
will. A typed will must be signed by two witnesses.
It is a good idea to consult with a qualified lawyer to make sure your
will conforms with California law and does not have any unintended
consequences.?
THE STATE BAR OF CALIFORNIA
http://calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10581&id=2189
The Superior Court of California offers online access to some
documents you may need to validate a holographic will:
PROOF OF HOLOGRAPHIC INSTRUMENT
http://www.courtinfo.ca.gov/forms/fillable/de135.pdf
This form is required if the decedent leaves a holographic (handwritten) Will.
PROOF OF SUBSCRIBING WITNESS
http://www.courtinfo.ca.gov/forms/fillable/de131.pdf
This form is required if the decedent leaves an attested Will (or
codicil) that is not self-proving (this usually occurs on wills
executed before 1985). You must locate one of the witnesses to the
Will (or codicil) who can sign the form to prove the authenticity of
the Will.
In answer to your question about what if one state recognizes such a
will and one state doesn't, well, that may pose a serious problem.
Luckily for you however, in this instance there doesn't seem to be
that much to be worried about where the issues of recognition and
validity are concerned. As it turns out it appears that Mississippi
also recognizes such an instrument so long as it meets the statutory
validation criteria set forth in that state's probate law.
MISSISSIPPI CODE
SEC. 91-7-10
http://www.mscode.com/free/statutes/91/007/0010.htm
Remember, the issue will likely be heard in both state courts:
?Probate proceedings are governed by the law of the state where the
deceased person resided at the time of death and by the probate laws
of any other state where the property was owned.?
?The probate court or division has jurisdiction over all PERSONAL
PROPERTY the deceased owned, plus all the real property the deceased
owned which is located in that same state. If the decedent owned out
of state real property, the laws of that jurisdiction will apply,
unless there is a Will. If there is no Will, Probate is usually
required in each state where the real property is situated, in
addition to the home state. Even if there is a Will, after it is
admitted to probate in the home state, it usually must be submitted to
probate in each other jurisdiction in which the deceased owned real
property. A separate probate action for such circumstance is known as
ANCILLARYprobate. Some states require the appointment of a Personal
Representative who is a local resident to administer the in-state
property.?
ENOTES
Everyday Law Encyclopedia/Probate and Executors
http://law.enotes.com/everyday-law-encyclopedia/probate-and-executors
I highly recommend you consult at licensed knowledgeable attorney
before embarking on this project alone.
I hope you find that my answer exceeds your expectations. If you have
any questions about my research please post a clarification request
prior to rating the answer. Otherwise I welcome your rating and your
final comments and I look forward to working with you again in the
near future. Thank you for bringing your question to us.
Best regards;
Tutuzdad-ga ? Google Answers Researcher
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