1st Aug 2019

World-renowned singer Aretha Franklin died on August 16, 2018, at the age of 76 in Detroit, Michigan.  Franklin’s two marriages had ended in divorce and she had four children, the first when she was only twelve years old.  She reportedly left behind an estate worth $80 million.

As we have seen with too many celebrities recently, Franklin left behind a messy estate that will likely require years of litigation to sort out.  However, rather than failing to do any estate planning or only utilizing a simple Will when she required more sophisticated planning, Franklin took it a step further by leaving behind three handwritten Wills that are difficult to decipher in terms of both their validity and legibility.

Holographic Wills

A holographic Will is a document that is handwritten and signed by the individual (testator) intending to make it their Will.  As is the case with most estate planning laws, the requirements for a holographic Will vary by state.  Under Illinois law, any Will must be in writing and signed by two witnesses.  Under Michigan law, however, a holographic Will does not need to be witnessed as long as its material portions are in the testator’s own handwriting and it is also dated and signed by the testator.

In Franklin’s case, the last of her three holographic Wills, dated “3/31/14” was found under a couch cushion.  The first sentence of the Will does state that she is of sound mind and that she intended the document to be her “will and testament.”  Unfortunately, the four-page document becomes much less legible as it goes on, consisting of allocations of specific items and property from her estate, appointment of an Executor and many items crossed out and further annotated in the margins. 

Why a person of Franklin’s means and stature did not have a proper estate plan in place is a mystery.  It has been reported that she had made reference to her “primary but grossly inefficient attorney,” but seeking out a competent estate planning attorney should not have been a monumental task for someone with Franklin’s resources.  Now, her estate and her handwritten documents will have to be litigated in court amongst her surviving heirs.

Even a Simple Will

While a proper estate plan is beneficial for any individual or family who would otherwise be subject to probate, even a simple Will would have been a significant improvement for Franklin over the holographic Wills that she left.  First, accurately interpreting the handwriting of someone in distress, advanced age or poor health is nearly impossible.  In the case of Franklin’s 2014 Will, as the document progresses, it becomes completely illegible.  There are blanks, stricken provisions, vague references to specific property and abbreviations that only she could understand.  Now it will be left to her family to argue over and for a judge to decide.

Second, while a Will alone would not serve all of Franklin’s needs, even a simple Will drafted by an estate planning attorney would include basic provisions that would have made the administration of her estate much less contentious and expensive.  For example, most Wills include a waiver of bond, which alleviates the cost of the Executor having to insure the value of the estate.  Additionally, at a minimum, the succession of Executors and Franklin’s wishes regarding who should inherit her estate would have been legible in a testamentary document drafted by an attorney.

Third, an estate planning attorney’s guidance in executing her Will properly would have reduced the likelihood of Franklin’s Will being contested.  Due to the complex signing requirements that states impose for each estate planning document, it is always best to execute such documents under the supervision or guidance of your estate planning attorney.

A Proper Estate Plan

Beyond a simple Will, nearly every aspect of Franklin’s family and financial situations required a complete estate plan, including a Revocable Living Trust.  First, utilization of a Trust would have allowed Franklin’s estate to avoid probate.  The threshold for probate varies by state.  In Illinois, an estate that consists of any individually owned real estate or more than $100,000 in assets is subject to probate.  In Michigan, this value threshold is only $15,000. 

Second, use of a Trust would have allowed Franklin’s family and financial matters to remain out of the public eye.  Since a Trust is administered privately, court proceedings may have been entirely avoided.

Third, a properly drafted Trust provides extensive flexibility and contingencies in the event that tax laws change or family members fail to survive the grantor.  These issues are often overlooked in overly simplified estate plans and certainly in holographic documents.

With the added complexities of Franklin’s handwritten documents as well as her extensive intellectual property, such as her music rights, likeness and unreleased material, administration of Franklin’s estate is likely to be a prolonged process.  It is further proof of the importance of proper estate planning.

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