Earlier this year, three handwritten documents which seem to have been written by Aretha Franklin were found. The documents are suspected to be wills, and their appearance has thrown a wrench into the works of the estate probate court proceedings.
Are these documents valid under state law? How do they affect probate? Is a probate attorney necessary?
What Is Probate?
Probate is a legal process where the assets of a deceased person’s estate are distributed to heirs following the instruction set out in their will. Typically a lengthy process, probating a will can become quite expensive, depending on any issues that may arise.
Because Aretha was originally believed to have died intestate, or, without a will or trust, the probate process looked like it would be the normal, long and complicated process. Months after her death, the suspected documents were found.
Different states have different laws and requirements when it comes to handwritten wills. This supposed will is handwritten, so they may be considered invalid by the state.
Is A Homemade or Handwritten Will Valid In Probate?
Handwritten wills that have been signed only by the testator, and by no witnesses, are known as holographic wills. Florida does not recognize these documents.
However, if a handwritten will is signed by the testator as well as witnesses, it is known as an attested will. These documents are valid and recognized in the state of Florida.
Requirements for Valid Attested Wills
- It must be in writing. A handwritten or homemade will is valid in this case.
- It must be signed by the testator at the end of the document, or by a proxy at the testator’s direction and in the testator’s presence.
- It must be attested to by two witnesses. Witnesses have no age requirement but are only considered competent witnesses if, (i) they can observe the testator signing the will and (ii) they can understand the nature of what the testator is doing.
- The will must be signed by the testator in the presence of two attesting witnesses, or acknowledge having previously signed the will or had it signed by a proxy. The witnesses are not required to read the will but need to sign it at the time of execution.
Looking at these requirements, had Aretha’s handwritten documents been handled in Florida they would not have been considered valid as they don’t have the signatures of any witnesses.
In Michigan, where Aretha lived when she died, the laws are more lax than in most other states. Michigan law allows documents that were intended as wills to be treated as such even if not all regular requirements are met, so long as there is clear evidence that the document was intended to be a will.
Why Should You Consult A Probate Attorney?
Homemade wills are much more likely to bring confusion and trouble than a will prepared with a qualified and experienced attorney. Often, probate cases cause disputes and suspicious circumstances. This is why consulting a probate attorney is so important.
A good probate attorney will help document reasoning for every decision made, as well as provide solid defense in the event of any later challenge.
Probating an estate involves both the probate laws of the state where the decedent lived at the time of their death, as well as the probate laws of any other states where the decedent owned real estate. Having an experienced, well-trained professional probate attorney to guide you through the process will ensure as smooth an experience as possible for all persons involved, especially when dealing with a potentially invalid handwritten will.
If you need experienced and reputable representation that yields great results, contact trusted probate attorney Gary I. Handin today at 1-877-815-4560!