Are Handwritten Wills Valid?

Crumpled paper at work desk

Maybe it was Patti LaBelle who asked, “Hey Joe, you wanna give it a go?”* But it seems it was Aretha Franklin who has left even more compelling questions after her death regarding what will happen to her estate based on three separate handwritten wills that were found in the singer's home.

Dying Without a Will

Franklin, who died August 16, 2018, at age 76, left behind four sons. Originally, it was thought that Franklin did not have a will when she died. When someone dies without a will, the estate is divided according to state law. Under Michigan law, an unmarried decedent's estate is distributed to his or her children. (Franklin had been married twice but long since divorced.) Thus, if Franklin had no will, her sons would each inherit one quarter of her estate.

However, other issues arise when someone dies without a will. Without a will, no one had been named by Franklin to serve as the estate's administrator (the role of a will's executor (or executrix) or of an estate's personal representative). Fortunately here, though, the sons seemed to agree: Franklin’s sons nominated Franklin’s niece to serve as the personal representative of the estate.

Another issue of dying without a will arises when special circumstances exist. In Franklin’s case, sources have reported that one of her sons has special needs. When someone with special needs inherits property after someone dies without a will rather than inheriting based on careful estate planning, that person might lose important benefits that help contribute to his care. This also means that the right person to manage that inheritance might not be included.

Had Franklin’s estate indeed included no will, it being administered with no will would no doubt have opened up Franklin's estate to public scrutiny and potential problems. (Failing to create an estate plan can cause lots of headaches for heirs in addition to unnecessary costs.) But at least with no will, the disposition of Franklin's estate would be clear according to Michigan state law: all of her four sons would inherit equally. (Other stars, such as Prince, have died without a will.)

Franklin’s Handwritten Wills

Franklin, though, apparently did not die without a will. At least three handwritten wills have been discovered in Franklin's home. Numerous sources have reported three distinct handwritten wills were found: two from 2010 (found in a locked cabinet) and one (found in a spiral notebook under a couch cushion) from 2014.

These new wills could dramatically change how Franklin's estate is handled. First, the division of property could be different under her handwritten wills. A New York Times article reported that the 2014 would reduce the amount her oldest son inherits.That will instead divides most of her property among her other three sons. Also, though, the person in charge of the estate might change. Originally, Franklin's sons chose Franklin's niece to administer the estate. One of the handwritten wills, though, named one of the sons for that role. That will also, though, had names scratched out and blank spaces. And the most recent handwritten will left a gift to that niece, even though she was not named to administer the estate.

Deciding which will governs will require a court to rule on the validity of each will. According to a story from NPR.org, each of these has been submitted to the probate court. Although having no will means public scrutiny and potential problems, Franklin having likely handwritten three separate wills herself will almost surely bring more problems. An initial hearing on Franklin's estate occurred June 17, but the judge did not make a decision about the wills.

Validity of Handwritten Wills

A holographic will is one written wholly in the testator's handwriting (a testator is the person making the will (also called testatrix under the feminine version)) and signed only by that person. Not all states allow holographic wills.

Texas does allow holographic wills. And formal paper need not be used. A person could scrawl a last will on a napkin, an envelope, or on the back of a grocery list or the paper bag the groceries came in. Indeed, you can surely imagine how this could play out with a Hollywood spin with someone writing their last will in crayon (or using a more gruesome method after being victim of a violent crime). Also in Texas, not only is this will handwritten by the testator, it's signed only by that person. No witnesses are needed. Michigan, like Texas, recognizes holographic wills as valid.

Florida does not recognize holographic wills as valid. In Florida, a will can be handwritten, but it must still be executed -- that is, signed -- under the same formalities as a typed will: signed in the presence of two witnesses who also sign the will. (A self-proving affidavit is also a key part of a will, but it is not a statutory requirement.) But beware: even though a holographic will can be valid in Texas or Michigan (and a handful of other states), it will not be valid in Florida.

Probate Pitfalls

As an estate planning attorney, I almost always recommend clients have a will rather than no will at all. But writing your own will is not any part of this recommendation. When a nonattorney writes her own will, often key provisions are left off. Handwritten wills such as Franklin's can bring even more problems: her 2014 will had scratch-outs, illegible handwriting, and conflicting information. Without having consulted with an estate planning attorney, Franklin was likely unaware of how her piecemeal planning could lead to complicated probate.

Even if the "Queen of Soul" had wanted her estate to go primarily to her children, by not having a clearly drafted will or trust, her estate will almost certainly have a long public probate process, which will likely cost her estate considerable money. These handwritten wills have now opened her estate up to more potential challenges that could drag out the probate process--more problems than even with no will at all. Because no formal will (or even her handwritten wills) clearly state Franklin's intent, litigation resulting from family conflicts might very well eat far into her estate's value.

Should You Handwrite Your Own Will?

Estate planning is important even if you don't have Aretha Franklin's assets. It allows you, while you are still living, to plan out how your property will go to the people you want, in the way you want, and when you want. It permits you to plan to save as much as possible on taxes, court costs, and attorneys' fees; and it affords the comfort that your loved ones can mourn your loss without being simultaneously burdened with unnecessary red tape and financial confusion.

As important as estate planning is, doing it correctly is as important. Estate planning with an attorney is particularly important if you want to try to assure your family fewer headaches, expenses, and arguments after your death. (This is never guaranteed, as death, grief, and money can bring about complicated emotions.)

So my answer is that a person is almost always better off to engage with an attorney for better estate planning than to write her own will. Estate planning attorneys are educated to understand issues related to bonds, independent and dependent administration, probate avoidance, privacy, and how to articulate your wishes so that what you want to happen will more assuredly happen.

As for whether handwritten wills are even worth the paper they are written on, maybe only as a fuel source. Granted, if you burn the paper used for handwritten wills, it likely won't provide as much fuel as Titan waste** could in an alternate universe. But the trouble such wills could cause could be about as messy--and much more costly.

*Patti LaBelle as part of LaBelle, Lady Marmalade, (Epic Records 1974) (written by Bob Crewe and Kenny Nolan).

**With a wink and a nod to my fellow Godzilla fans. See Godzilla: King of the Monsters, (Warner Bros. Pictures 2019).

Categories: Probate, Wills

Attorney Jana McCreary

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Houston Estate Planning and Elder Law Attorney Jana R. McCreary has been an attorney for over seventeen years, a career move she made after working for over a decade with adults and children with intellectual disabilities and mental illness. Graduati… Read More

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