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  • Writer's pictureDavid Krueger

CAN YOU HAVE A HAND-WRITTEN WILL?


When the “Queen of Soul”, Aretha Franklin, passed away in August 2018, her four sons filed paperwork with a probate court in Michigan indicating that she passed away without a will. Months later, Franklin’s lawyer of over 40 years, David Bennett, informed the probate court about the discovery of a 2014 handwritten will that was located inside a spiral notebook found under some cushions in Ms. Franklin’s living room.


Whether or not the disposition of Ms. Franklin’s estimated $80 million of assets will be governed by her 2014 will is likely to depend upon the probate court’s confirmation of the validity of the handwritten will. For a handwritten will to be valid, it must be in Ms. Franklin’s handwriting and clearly expresses her intent. Since the 2014 will is extremely difficult to read, consisting of four pages with scratched out words and scribbled phrases in the margins, even if it is confirmed valid it will likely lead to additional litigation.


Handwritten Wills


A “holographic will” is one that is written in the testator’s handwriting and is not witnessed. Kansas recognizes and accepts holographic wills, provided they meet certain requirements.


Unlike many other states, Kansas does not require the entire will be handwritten by the testator, as long as the material provisions of the holographic will are in the testator’s handwriting.


If there is some evidence showing that the handwritten will was intended to be a will and intended to dispose of the decedent’s assets or estate to identifiable beneficiaries, Kansas law and courts have often recognized handwritten wills. However, if the holographic will does not meet the decedent’s

handwriting requirement or does not pass the decedent’s clear intention test, it is likely that you will end up with an intestate probate that uses the “default rules” of Kansas intestate inheritance laws.


Passing Away Without a Will


Each state has various “default rules” to handle the distribution of assets in situations where a person passes away “intestate”, or without a will. Under Kansas inheritance laws, often the most important factors in determining the final distribution of assets are the decedent’s marital status and whether or not the decedent had any living children.


For example, if a decedent was married and died without children, or all of the decedent’s children were with this spouse, then the surviving spouse is entitled to 100% of the estate. However, if either the decedent or surviving spouse has children from a prior relationship, the distribution of assets can be dramatically different, with the surviving spouse receiving only a portion of the decedent’s estate.


Summary


Handwritten wills can be admitted to probate court in Kansas and confirmed as valid, if the holographic will meets certain conditions outlined in the Kansas Statutes. Our firm has handled various cases where a handwritten will has been found or produced at some point during the probate process.



PLEASE CONTACT US IF YOU HAVE QUESTIONS REGARDING HANDWRITTEN WILLS, OR IF YOU NEED ASSISTANCE FOR AN ESTATE WITH A HANDWRITTEN WILL.

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