By Ken Bloom, J.D., LLM

Although it was originally thought that Aretha Franklin did not have a will when she died, recent news reports of the finding of three handwritten documents in her home appear to have indicated she did have a plan for her assets.

A holographic will is a handwritten will signed and dated by the decedent. No witnesses are necessary to validate the holographic will and the testator (person creating the will) must be of sound mind and not under undue influence. Furthermore it must be the intent of the testator that the will be intended as a will.

In Franklin’s case, two of the handwritten notes were dated in 2010 and the last in 2014. However, it will ultimately be up to Oakland County probate court to determine if these handwritten “holographic wills” are valid and admissible.

While the courts may rule that Franklin’s holographic will is valid (and who knows which one will be controlling), it is never a good idea to trust a decision by the court to determine the distribution of your assets. Yet statistics show that more than 50% of people don’t even have a will, which is the most basic part of an estate plan.

One problem with a holographic will is since no witnesses are necessary it is unknown the testator’s mental condition at the time the will was written. Witnesses to the execution of the will can testify, if necessary, regarding the mental state of the testator. This is very important when there are questions regarding whether the testator was of sound mind or was under undue influence or coercion.

With the variety of assets and heirs Aretha Franklin had, she really needed to have a well thought out estate plan. Estate planning isn’t only for the rich and famous. Everyone who owns personal and real property should have an estate plan. And the first place to start is with a will. At the very least, she should have had a Michigan Statutory Will like the one that is available on our website (www.bloomassetmanagement.com.) A will ensures that your assets are transferred to the beneficiaries you select. However, a will does not avoid the probate court proceeding process that Franklin’s family is now enduring.

For most people the best way to avoid probate is to have a revocable trust as part of their estate plan. If Franklin had a revocable trust there would be no publicity since the terms of a trust are private. Keeping matters private is especially important where there are a large number of family members and/or substantial assets that are not easily valued or convertible to cash (licensing rights and royalties for Aretha).

A trust would permit her assets to be distributed to her beneficiaries with the least delay and without incurring unnecessary legal fees, costs or taxes.

While a properly drafted estate plan won’t guarantee there won’t be any legal challenges, it will reduce the likelihood of prolonged challenges and costly disputes.

Even families that seem perfect on the surface can and do challenge the distribution of assets after the death of a spouse or parent. While we aren’t yet sure to what extent Franklin’s family may challenge her holographic wishes, there are plenty of high-profile business and entertainment people whose families challenged their will and distribution of assets.

So if you are one of the 50% who don’t have a will, don’t take a chance on a holographic will. Instead, take the more formal first step and download the Michigan Statutory Will we have on our website. Once you fill it out and have it witnessed and notarized, you at least have a formal document that could help assure your assets are distributed per your wishes after you die. If you already have a will, now is a good time to make sure it is up-to-date and reflects your current situation and wishes. Too often people have a will that reflected their wishes a decade ago, but the birth of another child or grandchild, or a divorce, can mean these life changes are not reflected in your old will.

But remember, a will does not avoid probate. Not everyone needs (or wants) a trust but in many situations a trust may be recommended. So I recommend consulting an estate planning attorney to determine if your situation requires a more detailed estate plan.

If Aretha Franklin had done that, there would not have been such extensive news coverage about her holographic will and how the court will have to interpret her intentions regarding the transfer of her assets after death.

If you are not sure if a will is sufficient for your situation, or need to update your estate plan, contact me at ken@bloomassetmanagement.com.