Some, but not all, states authorize holographic wills. Maine is one of those states that permit holographic wills. Title 18-C M.R.S. Section 2-502. A holographic will, in Maine, is defined as a will that does not comply with Section 2-502(1) if the signature and material portions of the document are in the testator’s handwriting. In essence, it is a handwritten will. Typically, lawyers despise holographic wills, as they are a recipe for disaster. However, when your practice is unable to execute wills because clients are concerned about Covid-19, a very short (1/2 a page) pour-over holographic will, for the client to transcribe in longhand can offer a witness free alternative to an in-person signing.
When done correctly, the will is executed by the client first, and then, a traditional revocable trust is executed. Maine, like many states, has default law that applies where a will is silent, and the pour-over holographic will envisioned here would likely attempt to make good use of that default law so as to save the client from having to copy more than a page.
Now, in Maine, a revocable trust need not, unless its terms provide, require witnesses nor must it be acknowledged, though both are commonly used. At the very least, signatures on trusts are frequently acknowledged before a notary so that they can be, should the need arise, recorded or introduced into evidence as an attested instrument and because it helps others accept the instrument as “legal.” If the client cannot appear before a notary in person in Maine, an e-notary, such as that authorized in Virginia to take foreign acknowledgments can be used. In Maine, Title 4 M.R.S Section 1011, http://legislature.maine.gov/statutes/4/title4sec1011.html, provides for recognition of notarial acts performed outside this State for use in this State with the same effect as if performed by a notary public of this State when performed by certain persons authorized pursuant to the laws and regulations of other governments. In short, the client can have their signature on the trust acknowledged without leaving the safety of their home. The same goes for deeds and powers of attorney. Sadly, Health Care Directives in Maine are a different story as they require 2 in-person witnesses. Unfortunately, there is no such thing as a holographic Advance Health Care Directive. Perhaps there should be.
While the holographic workaround is not the most elegant way to present an estate plan to a client, these are desperate times, and desperate times may call for desperate measures. Hopefully, state Governors will start to realize that the legal community during the Covid -19 crisis needs new tools to keep them and their clients safe. Until then, when you have an elderly client with a strong wrist but a weak heart, or any serious health concern, consider the holographic will solution and, if there is a need, give the client a free revocable trust upgrade to allow for an out of the office document signing. Our position as lawyers does not entitle us profit, only to serve. Serve your clients well, and you will be rewarded.