In any comprehensive estate plan, a letter of instruction (LOI) is an important component. An…
Can a Holographic Will be Admitted to Probate?
When the “Queen of Soul”, Aretha Franklin, passed away in August 2018, her four sons filed paperwork with the Oakland County Probate Court in Michigan indicating that she passed away without a will. Ms. Franklin’s sons nominated her niece to serve as the fiduciary of her estate.
Passing Away Without a Will
When a person passes away without a Will, state law determines how the decedent’s assets will be distributed. At the time of her death, Ms. Franklin was unmarried and had four sons. Under Michigan’s intestacy laws, Ms. Franklin’s estate was to be distributed to her children.
Recently, three handwritten documents (two dated in 2010 and the third dated in 2014) were found in Ms. Franklin’s home. Her estate representative is asking the probate court to determine if any of these documents are valid Wills under Michigan Law. The documents are hard to read, but they generally distribute Ms. Franklin’s assets to her family and one even names Ms. Franklin’s son as the fiduciary of her estate. This is at odds with the current fiduciary since Ms. Franklin’s niece is currently serving as the fiduciary of the estate. In addition, two of her sons are allegedly contesting the documents.
A Holographic Will
A holographic will is one that is written in the testator’s handwriting and is not witnessed. Michigan recognizes and accepts holographic wills provided it meets certain requirements.
New York State
However, unlike Michigan, New York only accepts holographic wills under limited circumstances. Pursuant to New York’s Estates, Powers, and Trusts Law § 3-2.2, New York only recognizes and accepts a holographic will if it is made by:
- A member of the United States armed forces while in actual military or naval service during a war, declared or undeclared, or other armed conflict in which members of the armed forces are engaged; or
- A person who serves with or accompanies an armed force engaged in actual military or naval service during such war or other armed conflict; or
- A mariner while at sea.
Reasons a Holographic Will May Become Invalid
These holographic wills may become invalid under the following circumstances:
- If made by a member of the armed forces, after one year following his or her discharge; or
- If made by a person who serves with or accompanies an armed force engaged in actual military or naval service, after one year from the time he or she stopped serving with or accompanying such armed force; or
- If made by a mariner while at sea, after three years from the time the holographic will was made.
Accordingly, had Ms. Franklin passed away domiciled in New York, these handwritten documents would not be considered valid Wills under New York law.
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