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Understanding Holographic Wills and Their Significance

** This article has been revised from its original version which was published on January 8, 2020.

When the “Queen of Soul,” Aretha Franklin, passed away in August 2018, her four sons filed paperwork with the Oakland County Probate Court in Michigan indicating that she passed away without a will. Since there were no estate planning documents to follow, Ms. Franklin’s sons nominated her niece to serve as the fiduciary of her estate.

Passing Away Without a Will

When a person passes away without a will, state law determines how the decedent’s assets will be distributed. At the time of her death, Ms. Franklin was unmarried and had four sons. Under Michigan’s intestacy laws, Ms. Franklin’s estate was to be distributed to her children.

Handwritten Documents

Later, three handwritten documents (two dated 2010 and the third dated 2014) were found in Ms. Franklin’s home. Her estate representative asked the probate court to determine if any of the documents were valid wills under Michigan law. The documents were hard to read, but they generally distributed Ms. Franklin’s assets to her family, and one even named Ms. Franklin’s son as the fiduciary of her estate. This was at odds with the chosen fiduciary since Ms. Franklin’s niece served as the estate’s fiduciary. In addition, two of her sons contested the documents.

A Holographic Will

A holographic will is written in the testator’s handwriting and is not witnessed. Michigan recognizes and accepts holographic wills, provided they meet certain requirements.

Wills in New York State

However, unlike Michigan, New York only accepts holographic wills under limited circumstances. Under New York’s Estates, Powers, and Trusts Law § 3-2.2, New York only recognizes and accepts a holographic will if it’s made by:

  1. A member of the United States armed forces while in actual military or naval service during a war, declared or undeclared, or other armed conflict in which members of the armed forces are engaged; or
  2. A person who serves with or accompanies an armed force engaged in actual military or naval service during such war or other armed conflict; or
  3. A mariner while at sea.

When creating a will in New York, it makes sense to have professional guidance from estate planning attorneys in New York to ensure your will complies with state laws and provides clear instructions for personal representatives and family members.

Reasons a Holographic Will May Become Invalid

These holographic wills may become invalid under the following circumstances:

  1. If made by a member of the armed forces, after one year following their discharge; or
  2. If made by a person who serves with or accompanies an armed force engaged in actual military or naval service, after one year from the time they stopped serving with or accompanying such armed force; or
  3. If made by a mariner while at sea, after three years following their discharge.

Had Ms. Franklin passed away as a resident of New York, these handwritten documents would not be considered valid wills under New York law.

Contact the Russo Law Group P.C. to create a valid will as part of a comprehensive estate plan that lets family members know your wishes and avoids public conflict. Russo Law Group, P.C., has experienced estate planning attorneys in New York to ensure your estate planning goals are met. Mistakes in estate planning are common and can be costly. We invite you to take advantage of our comprehensive website as well as our free seminars and webinars to learn more about how Russo Law Group, P.C. may offer you and your family peace of mind.

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