This column first appeared in the San Antonio Express News and other Hearst Newspapers on June 3,2019.
Dear Mr. Premack: I’ve been following articles about the death of Aretha Franklin, how they have found three different handwritten wills and are arguing in court over her estate. I just can’t imagine someone well-known and wealthy dying without giving thought to their heirs; it seems so selfish. I’ve decided it is time to make my own will, but am put off by these articles about the unreliability of handwritten wills. What other choices do I have to help my family in a way that no one can fight over? – GH
Aretha Franklin died in 2018 in Michigan, with an estate that Forbes reports as about $80 million. Three papers have been filed in court. Two are handwritten letters from 2010, and the third is a handwritten letter written in 2014 that was found under a sofa cushion.
Each state has laws defining exactly what constitutes a Will. The Michigan court will decide on whether and which of Franklin’s writings qualify as her Will. If this was in Texas, a writing would qualify as a Will only if it was entirely in her own handwriting, was dated, was signed, and expressed intention to distribute assets upon her death. Additionally, for any writing to be a valid Will, Franklin would have needed to have testamentary capacity at the time she made the Will.
She is not alone among famous musicians to die without a Will. According to reports, Prince, Amy Winehouse, Bob Marley, Sonny Bono, Jimmy Hendrix, and Kurt Cobain all died without having made Wills. Some of their estates were highly valuable, and have been contested and argued over by various claimants for up to 30 years. No one should want that to happen to their families after they die.
You have a variety of planning options. Even though handwritten Wills are legal in Texas, they should be avoided. As is clear from the Franklin estate, handwritten Wills can cause a great deal of confusion which spurs unnecessary family strife and litigation. The better approach is to work with an experienced estate planning attorney. You will pay some fees, but you will save lots of time, money, and turmoil for those you leave upon your death.
Start with a formal Will. You will tell your lawyer the extent of your assets and debts, the people in your family, and how you want the assets to be distributed. You will select an Executor to handle your finances after you die (plus alternates in case your first choice is ill or dies). The Will can streamline probate court by allowing an unsupervised administration, and by dispensing with the need of an Executor’s bond.
Also, make sure you have properly designated beneficiaries on life insurance, IRAs, annuities, and accounts that allow designations. Life insurance is a classic example of a non-probate asset. You have a contract with the insurance company that, upon your death, requires them to write a check to someone. You must tell them exactly who gets the money, or they will require probate of your estate. If you don’t have a Will, the process - which could have been very simple – will be slow and expensive.
Sometimes a Living Trust is the appropriate planning tool. You work with an experienced planning lawyer to draft the Trust, convey assets into the Trust, and act as its initial administrator (Trustee). If you become disabled or when you die, the terms of the Trust allow distribution of your assets to those you have selected without the need for probate.
Don’t emulate the celebrities who failed to plan. Instead, make legal documents now that will benefit you should you become disabled, and will benefit your family should you die. You’ll feel good when you have your legal affairs and estate plan in proper order.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.