Imagine you are sitting on a couch at home. With pen in hand, you jot down notes about how your assets should be distributed when you die. You tuck the pages into a spiral notebook and shove the notebook under the couch cushions. Perhaps you are just an ordinary Joe or Josephine or Aretha Franklin. And then the inevitable happens. Did you create a valid will to pass assets upon your death? It depends upon where your couch and assets are located.
Just over half of the states consider as valid a handwritten will. Two more, Maryland and New York, permit handwritten wills for active duty servicemen. These are designated as “holographic wills.” At first, writing one’s own will might seem a good way to avoid paying lawyers. Yet, the estate of Aretha Franklin demonstrates that when it comes to death and dying, it is either pay now or pay later.
Holographic wills must be completed solely in the handwriting of its makers. They do not need to be witnessed or notarized. Most states accepting holographic wills do require that they be signed by the maker, also known as a testator (male) or testatrix (female).
Let’s set aside the obvious problem that most people are not knowledgeable about inheritance laws. The first challenge of holographic wills is proving that they are valid. The will is presented to the probate or orphan’s court upon the testatrix’s death. These courts will have to determine whether the will was the work of the testatrix. That determination is a bit easier if signed by the testator’s hand. Handwriting experts or people familiar with the decedent’s handwriting must convince the court that the signature was indeed that of the deceased.
How good is your handwriting? Has your signature changed over time? Problems arise when the writing is vague or illegible.
As with any will, a holographic will must explicitly name beneficiaries to receive property or assets, such as real estate, stocks, and bonds.
If the maker was not of sound mind, a will’s validity can be contested. As a counter, beneficiaries can better prove that the maker had the capacity to make a will when prepared by a lawyer and executed before witnesses.
Also, a holographic will may not contain the testator’s final wishes. The decedent may have written the holographic will as a draft. Imagine Aretha Franklin’s son finding a spiral notebook with four loose pages tucked under sofa cushions. The pages contained complaints about past lovers and random scribblings about the division of an estate. Franklin incorporated a smiley face instead of the first capital letter A into the signature.
A second will document was also located in a cabinet. The other document bore a notary’s stamp. Yet, the date of the second document preceded the four sheets of paper will. The last valid document nullifies all prior documents in the world of wills and testaments.
Five years after Franklin’s death, a Michigan jury settled on the four pages as the valid representation of her will. Her four sons suffered a torturous process. Previously a harmonious group, relationships suffered.
Aretha Franklin’s legacy includes the majesty of her music and the messiness of her estate.
For the latter, she gets no R-E-S-P-E-C-T