While it is true that all 50 states allow you to write your own will, there are many pitfalls to avoid and a self-written will can be hazardous to your beneficiaries.
For example, when Aretha Franklin died on August 16, 2018, she left her estate in a mess. She may have been the “Queen of Soul”, but she wasn’t the “Queen of Estate Planning” or even a princess. She made many mistakes in planning for the distribution of her estate (reportedly worth $18 million to $80 million). Let’s start with her first mistake: she left three hand-written wills and possibly a fourth one in document form, but not signed according to the Detroit Free Press that is monitoring this saga.
As we dive into this subject, keep in mind each state has its own set of legal requirements to create a valid will. Therefore, if you’re thinking about a true DIY approach to estate planning, be sure to know your state’s requirements to create a valid will. Consult with a qualified estate attorney at the very least.
Hazard #1: Not meeting requirements to be able to create a will
Even if your will is correctly drafted, if you weren’t 18 or considered of sound mind when you drafted it, the probate court may consider it invalid. Ms. Franklin was 18 and probably of sound mind, but she made many other mistakes as we’ll see.
Hazard #2: Multiple Wills
Here is where Ms. Franklin created much of her estate chaos. In her case, there are four documents for the courts to sort through. According to Nolo, there may be some circumstances in which multiple wills are appropriate. However, Nolo points out the pitfalls of multiple wills. This includes confusion among personal representatives (who’s in charge here?) and family members (who gets what?). Multiple wills may cause the courts to have special hearings to determine which will is valid, a time-consuming and expensive action. Ms. Franklin died more than three years ago and her estate is still in phase 1: figuring out which if any of the wills are valid.
Hazard #3: Un-clear intent to form a will
The testator (person writing the will) must have the specific intent to form a will and dispose of their property in creating the will. The person must create the will voluntarily. Usually, all it takes is the will creator adding a sentence that this is their intent, and they are doing it voluntarily. It seems the three hand-written wills and typed document for Ms. Franklin meet this requirement according to the Detroit Free Press.
Hazard #4: Signature requirements
The will creator needs to sign a will document –whether hand-written or typed – for it to be valid. According to an NBC News report, the three hand-written wills by Ms. Franklin were signed and dated. However, the fourth will document of Ms. Franklin is at risk. It wasn’t signed according to the Detroit Free Press account.
Hazard #5: Witnesses Required
Most states require a hand-written will be signed in front to two witnesses, who must also sign the will. Some states even require the witnesses to be dis-interested parties, meaning they won’t gain anything from the will. Ms. Franklin’s hand-drafted document were not witnessed.
Note: Ms. Franklin’s estate situation is being un-tangled in Michigan courts (where she lived). There are many other twists and turns in her situation with lessons for us commoners. The IRS and her four sons (one with special needs) and their attorneys are wrestling through the issues. As of today, Ms. Franklin’s estate is not settled, and the four sons have not received any money yet.
In summary, if a hand-written (or typed) will doesn’t meet your state’s rules, a probate court could find it’s invalid. The court might find that you died “intestate” (a lovely Latin originating word meaning a person who has died with no will). That is, your wishes would be ignored. I’ll discuss the estate planning mistakes of the rich and famous –including Ms. Franklin — in the next blog post.