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If you’re not familiar with the term “holographic will,” don’t feel bad. It’s not often heard outside of law school classrooms, and it’s just a legal term for a handwritten will that is signed by the person making it, who is called the testator. Is a handwritten will legal? That depends on the circumstances, such as where the will was made (not all states recognize holographic wills); what information it contains; and whether the writing and signature can be authenticated (proven to be that of the testator).
Michigan happens to be one of the states that recognizes holographic wills. Even as estate planning attorneys, we recognize the appeal. No trips to an attorney’s office (and no legal fees). The freedom to change your will any time you want. The ease. The convenience.
At this point, you might be wondering why estate planning attorneys are trying to sell you on the benefits of a handwritten will. The truth is, we’re not. While a handwritten will may sound easy and economical, there are hidden pitfalls to this and other forms of do-it-yourself estate planning.
Holographic Wills: a Michigan Cautionary Tale
Are handwritten wills legal? Possibly. Are they a good idea? Almost never. The reason you create an estate plan is to simplify matters for the loved ones you leave behind—to make your wishes clear so that they can be honored. But holographic wills often create more confusion than clarity.
Michiganders don’t have to look very far to find a high-profile example of this truth. Aretha Franklin died in 2018. Despite the fact that she had a considerable estate and an adult child with special needs, it appeared that she died without a will or estate plan. Months after Ms. Franklin’s death, a family member was cleaning out her home and discovered three handwritten documents (one hidden in the sofa cushions) that seemed to be wills.
Unfortunately, the documents were not signed (a requirement for a valid will), their terms conflicted, and portions of each document were illegible. Were the documents intended to be wills? Were they simply notes prepared in anticipation of making a will? It’s unlikely that we’ll ever know for sure.
In addition to these documents, one of Ms. Franklin’s four adult children received a fourth document that appeared to be an unsigned will, along with his mother’s handwritten notes from a law firm with which she had worked on an estate plan. He submitted those documents to the probate court in an attempt to have them probated as Ms. Franklin’s will. A trial was expected to take place in late 2021, but no outcome is known as of this writing.
Almost four years after Ms. Franklin’s death, her estate remained unsettled, her loved ones in conflict that she surely didn’t intend. All of that could have been avoided had she completed an estate plan with an attorney.
You may be thinking to yourself that there’s a middle ground between handwriting a will and hiring an attorney: there are all kinds of forms available online. Why not just do that? The reason why can be summed up in seven words: you don’t know what you don’t know.
DIY Estate Planning: What You Don’t Know Can Hurt You
You can easily access estate planning forms online. You can access information. What you cannot access online are wisdom and experience. The problem with a DIY estate plan is that it is not tested until after you become incapacitated or die. If a problem is discovered then, it is too late to do anything about it.
When you make an estate plan with an experienced attorney, you are not just getting documents. You are getting a consultation regarding your needs, and a plan designed to meet those needs. Your attorney will ask you questions that you may not have even thought of—but the answers could have a profound impact on your planning.
Are you a single parent? Do you have a loved one with special needs? Do you have a prenuptial agreement? Do you own cryptocurrency? Are there charities you want to support? Are you worried about creditors taking your loved ones’ inheritance? These are just a few of the many considerations that could affect your estate plan.
Another reason to work with an estate planning attorney is that your estate plan isn’t a single document. Many people go online to create a will and think that they’ve made an estate plan. In reality, a will is only one part of an estate plan. There are other documents you need, such as a durable financial power of attorney and patient advocate designation. Depending on your planning goals, you may want a trust instead of, or in addition to a will. Most people benefit from an attorney’s guidance in creating a comprehensive plan.
Remember, the point of creating an estate plan is to make things easier for the people you love. If you don’t understand what your estate planning documents are designed to do, your plan could be unclear, incomplete, or ineffective. Confusion can lead to conflict, which may lead to family rifts, probate litigation, and your estate going to legal fees instead of to your loved ones.
You never know when you will need to have an estate plan in place. Hopefully, it will be many years from now. If that’s the case, your assets and family will probably change between now and then. Having a relationship with a trusted estate planning attorney means that you can update your plan so that it will be current when it’s finally needed. And at that time, your family will have the support and guidance they need to administer your estate and move forward with their lives.
To learn more about the dangers of DIY estate planning and holographic wills, or to make an estate plan you can count on, contact our law office to schedule a consultation.