When Aretha Franklin passed away in 2018, her family and lawyer initially thought she had died without a will. But earlier this year, three handwritten wills were found in Franklin’s home in Detroit. Two from 2010 were locked in a cabinet and one from 2014 was found hidden under a couch cushion. Franklin’s attorney filed the wills in probate court without knowing whether they were legal under Michigan law. One of Franklin’s sons questioned whether she actually wrote the wills and convinced the probate judge to allow a handwriting expert to examine the documents to verify whether the handwriting is Franklin’s. It looks like the battle over Franklin’s estate, reportedly valued at $80 million, has just begun.
You may have wondered if you need an attorney’s help or if, like Aretha Franklin, you can just write your wishes on a sheet of paper. About half of all the states allow a handwritten will as long as it meets certain requirements. But even if a handwritten will is legal, is it wise to rely on one?
What Makes a Handwritten Will Legally Binding?
A written will is valid if it is: (1) in writing; (2) signed by the testator, i.e., the person making the will; and (3) signed by at least two witnesses who saw the testator sign the will or acknowledge the signature on the will. In the states that recognize a handwritten or holographic will, the document will be valid if the important parts of the will are in the testator’s handwriting (i.e., not typed out) and it is signed by the testator, even if it is not witnessed. Some states also require a handwritten will to be dated, and others require clear evidence that the testator intended the document to be a will and not just notes about what might have later been included in a will. Other states require witnesses to establish that the handwriting and signature are, in fact, those of the testator. In all instances, the testator must have testamentary (mental) capacity) and testamentary intent (i.e., the knowledge that what they were signing a document intended to be a will).
Is a Handwritten Will Really Easier? Is it Less Expensive?
At first glance, it may appear that a handwritten will is the easiest and cheapest way to dispose of your money and possessions when you pass away. However, this may not be the case for several reasons.
Lengthy and expensive probate process. Like other wills, a handwritten will must be admitted to and accepted by the probate court before it takes effect. Although you may save the initial legal fees of having an estate planning attorney draft a will and/or trust, handwritten wills are notorious for bringing complicated, expensive, and public probate proceedings and legal challenges. There may be questions about your intentions. And although what you write in your will may seem very clear to you, others may not understand what you intended. In addition, some heirs may question whether the handwriting is actually yours—meaning that witnesses or a handwriting expert must be called to verify it.
Having an experienced estate planning attorney draft a will that is properly executed will smooth the probate process and avoid the expenses that often arise when a will is handwritten. Further, the probate process can be avoided altogether if you create a revocable living trust. Once you create your trust, you transfer your money and property into it for the beneficiaries you choose. Because the trust owns your property at your death, probate is not required to transfer ownership to your beneficiaries when you die. A trustee that you select will manage the property and funds you place in the trust and will transfer them to your beneficiaries exactly as you have directed without delays and court involvement.
Inadequate expression of intentions. Many people know how they want to distribute certain items, but they don’t know the clearest and surest way to express this. They also may not think of everything that the will should address. For example, who will care for your children if something happens to you, or what will happen if a property recipient dies at the same time as you? What will happen to the money you set aside for your children if you die when your children are still minors? An experienced attorney can help you address these issues in a professionally drafted will or trust.
Moving to a state that does not recognize handwritten wills. If you are planning to move, remember that about half of all states do not allow handwritten wills. A few will recognize a handwritten will that is legally valid in the state in which it was made, but most will not. If you relocate to one of these states and do not have a will that is valid in that state, events will proceed just as if you had died without a will. Your property will go to the heirs specified by the state’s “intestacy” laws, which may not benefit the people you would have chosen.