Despite their disfavor among estate planners, holographic wills — entirely handwritten by the testator, normally without the aid of a legal "expert" — keep popping up in the news, especially with regard to celebrities. In the United States, slightly more than half of the states recognize, to one degree or another, a holographic will. Even among those that do recognize such a will, the requirements vary from state to state.
On July 11, 2023, a jury decided that a 2014 document handwritten by Aretha Franklin and found under a couch cushion after her death is a valid will, capping a two-day trial in Oakland County, Michigan, probate court, as Franklin's five-year estate saga nears a conclusion. However, the judge must now decide whether the 2014 handwritten document revokes an earlier, 11-page 2010 document, already agreed by Franklin's sons to be a valid will entirely or just in part.
According to Brinkley Morgan Trust & Estate attorney George Taylor, the dispute over Franklin's will is an example of litigation that can arise without proper estate planning. By having a holographic will, Franklin's estate was left more susceptible to being contested and accusations that it was created under duress, according to Taylor.
"In fact, some states, such as Florida, will not recognize holographic wills," he said. "Traditional wills that are carefully drawn up by a skillful estate planning attorney and properly executed are far more likely to stand up in court if a dispute over the will arises."
Christopher Massaro, litigation partner and co-chair of the trusts & estate litigation practice group at law firm Cole Schotz, agreed.
"A lot of times a case will involve sibling rivalries," he observed. "In this case, there seems to be a dispute about the mother's — Aretha's — wishes. Holographic wills should only be used in emergency situations. There are so many situations that such wills do not address, such as tax planning, planning for children with special needs, health care directives, and more. That all gets lost if it's simply a holographic will. And even in states that permit holographic wills, they must meet the requirements of each particular state to be admitted."
The estate of talk show host Larry King illustrates the risks of holographic wills, according to Taylor. Although it was written after a comprehensive and properly executed will, in a state that permits such wills (California), the end result was a confidential settlement of King's $144 million estate.
The will, edited for clarity, said roughly, "This is my last will and testament. It should replace all precious writings. In the event of my death, any day after the above date, I want 100% of my funds to be divided equally among any of my children, Andy, Chaia, Larry Jr., Chance, and Cannon."
It is likely that King's holographic will is lacking the detail needed to fulfill his intent, according to Taylor. "For example, was King attempting to replace all previous wills and trusts, or just prior wills? Most of his $144 million estimated net worth was in a trust. What funds was he referencing? He could have been referencing funds in bank accounts, mutual funds, or brokerage accounts — we simply don't know. The most tragic part of the attempted DIY estate planning is that two of his children, Andy and Chaia, predeceased him, and his will does not provide for alternative beneficiaries, like his grandchildren."
