Is a Handwritten Will Ever Valid?

Q. My brother, Larry, doesn’t like to spend money on anything. His family never went on vacation, never bought a new car, or never remodeled their 1970’s kitchen (or any other part of their home, for that matter). His attitude is that if something is functional, there is no need to replace it. He is also not big in the way of planning for things, especially if that planning costs money.

Being frugal and staying on a tight budget is fine, and even commendable, but what I don’t understand is how he can refuse to budge about things that his family really needs. It’s certainly true that he and his wife, Cheryl, will have some savings when they retire. But, having never planned for anything, what would happen to all of that savings and their home when they die or if they should become incapacitated one day?

Recently, Larry brought up that he and his wife do, in fact, have Wills. I was proud that they took the initiative to meet with an attorney to do at least some estate planning. However, when he told me they were hidden in a sock drawer and that he and Cheryl wrote them by hand is when I began to worry. He mentioned to me that he read an article about how Aretha Franklin has three handwritten wills, one of which was found under a sofa cushion, that may be valid. This leads me to ask, can handwritten Wills ever be valid, and even if so, how can I convince Larry to reconsider and let an experienced attorney handle his estate planning? Thanks for your help!

A. Your brother is correct in that three handwritten (also known as “holographic”) wills were found in the home of the “Queen of Soul,” Aretha Franklin. This includes one that was discovered under sofa cushions in the living room, according to her lawyer.

Aretha Franklin died last August at 76 of pancreatic cancer and left behind assets worth approximately $80 million. Lawyers and family members said at the time that she had no Will. This was recently found to be untrue, when two handwritten Wills from 2010 were found in a locked cabinet after a key was located. The other one, dated March 2014, was found scribbled inside a spiral notebook, and as mentioned, was hidden under her sofa cushions. According to David Bennett, her attorney, some writing in the notebook is extremely hard to decipher and the four pages have words scratched out and phrases in the margins, yet the handwriting was proven to be hers.

In December 2018, the IRS filed a claim against the estate for $6 million in back taxes, and over $1 million in penalties. Also, Franklin had a stake in a yet-to-be-released film about her life; advance ticket sales have already generated over $3 million, and this was of course not accounted for in any of the Wills.

Once discovered, the handwritten Wills were shared with Franklin’s four sons or their lawyers, but a deal has not yet been reached on whether any should be considered valid, according to her attorney, who urged her to not only create a Will, but also a trust in order to keep her financial and family situation private.

Handwriting a Will for Privacy Gives You Anything But, in the End

Why would Franklin, a superstar with more than enough money to get expert legal help, handle her affairs in this manner? If you look back to our previous article about her, you could infer that it is because of her passion for guarding her privacy. Unfortunately, if that were the case, her lack of sound planning led to the very opposite outcome she would have wanted, with her finances and family circumstances open to public scrutiny. Her attorney said that if he had known about the three hand-written wills, he would have been more persistent about urging her to see an estate planning lawyer to make sure her estate planning is done right and in accordance with the law.

Are Handwritten Wills Valid in Virginia, Maryland, and DC?

Every state makes its own rules for what is required in order to execute a valid will.
Virginia’s requirements for a valid will can be found in Chapter 4 of Title 64.2 of the Code of Virginia. Maryland’s requirements are found in Title 4 of Maryland’s Estates and Trusts Article.

Under these laws, a Will may be created by any adult person who is mentally competent to draft it. A Will must be in writing (or typed) and signed by the person who is making the will (the testator) in the presence of two competent witnesses. Under Virginia code section 64.2-403.B, a holographic will, which is entirely handwritten in the testator’s handwriting, does not need to be witnessed, but must be signed and dated by the testator and proved by at least two disinterested witnesses in order to be admitted to probate and actually function as a will.

Maryland recognizes holographic wills, but only those done by someone who is serving in the armed services of the United States, and they become void one year after discharge from the armed services. (§ 4-103)

DC does not recognize holographic wills.

Why Handwritten Wills Are NOT RECOMMENDED

If I have a toothache, I can use the pliers in my toolbox to extract my own tooth instead of having an oral surgeon perform the procedure. Of course, just because I can do it doesn’t mean it’s a good idea.

Unlike many other matters where mistakes might be able to be corrected – by the time estate planning issues arise, the people have passed on and can’t correct the problems.

So, although it’s possible to write a Will by yourself and to determine the distribution of your worldly possessions after your death, without the help of an attorney, most likely a mistake will happen, which makes properly written estate planning documents something you shouldn’t try and save money on by doing it yourself.

I’ve seen a lot of wills that aren’t executed properly. People often leave simple things out. However, when there are questions or errors, many courts will not validate provisions if the will is not properly written or executed. Courts will also balk at provisions that do not make sense. Even if no one contests your will, the courts still have to follow the letter of the law.

When there are mistakes, it is possible that the survivors of the deceased will end up in court, spending thousands of dollars and countless hours fighting over the interpretation of the will, not to mention the time and money spent for the Will to go through the probate process. Curious about all the things that could possibly go wrong in a DIY Holographic Will? For more details, please see Angel’s answer in today’s Critter Corner.

Probate IS a Nightmare

All Wills (whether they are DIY or done in our office) force your estate to go through the painstaking, expensive, public process of probate! The probate process includes proving the authenticity of a person’s Will, appointing an executor, identifying and inventorying a person’s assets, paying debts and taxes, identifying heirs, and distributing property according to the Will, or if no Will is available, according to state law. See my article on this subject for five detailed reasons why probate is such a nightmare. The best way to avoid probate is to consult an experienced elder law attorney to design and implement a fully funded Revocable Living Trust or a Living Trust Plus®, depending on your situation.

Make Sure Your Documents Are Right

When it comes to estate planning, you don’t want to treat the entirety of what you worked your whole life to accumulate to something scribbled in a spiral notebook. Even if your handwritten Will were perfect, estate planning is about much more than getting the documents right. Sometimes the documents are right and they still don’t work because your financial affairs are not in sync with them. It can get rather complicated, and it takes an experienced Estate Planning and Elder Law attorney, such as those at the Farr Law Firm, to help you plan effectively. We can help you leave your hard-earned money and assets, as well as a sense of your values, to your loved ones.

If you haven’t done your own estate planning, the time is now. Contact us for a free initial consultation to discuss your estate planning needs:

Estate Planning Attorney Fairfax: 703-691-1888
Estate Planning Attorney Fredericksburg: 540-479-1435
Estate Planning Attorney Rockville: 301-519-8041
Estate Planning Attorney DC: 202-587-2797

 

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