By Katie Sabo

It was presumed that Aretha Franklin did not have a will or trust in place when she passed away in August 2018. However, eight months after her death, three handwritten documents were found in her home, each of which appear to be Ms. Franklin’s attempt at a handwritten will. At least one of Ms. Franklin’s children have objected to the validity of the documents because if they are found to be valid wills, it would change how the estate would be distributed under Michigan law.

Not only have these documents created a slew of problems for Ms. Franklin’s estate, they have also raised numerous questions regarding estate planning in general in Michigan.

What happens if someone dies without a will?

In Michigan, if an individual dies without having a will in place, they are said to have died intestate. A probate estate must be opened in the probate court, and the court will appoint a personal representative who is responsible for administering the estate. The court will also declare who the deceased individual’s heirs are and what percentage each heir will receive of the estate, all of which is predetermined by statute.[1]

The result is that the deceased individual does not have any control over how his or her assets will be distributed. Additionally, the process can be costly due to court filing fees, attorney’s fees and the inventory fee that is calculated based on the size of the individual’s estate. One of the most significant drawbacks of the probate process is that the proceedings are all public record. If Aretha Franklin had engaged in estate planning aimed at avoiding probate, this entire controversy could have not only been avoided, but could also kept out of the public eye.

Are handwritten wills valid in Michigan?

A handwritten or “holographic” will is valid if 1) it is dated, 2) the material portions of the document are in the deceased individual’s own handwriting, and 3) it is signed.[2] More importantly, there must also be sufficient evidence that it was the deceased individual’s intent that the writing be considered his or her will.[3] However, when someone is no longer living, this can be very difficult to prove. Accordingly, the court will require a hearing with evidence presented and witness testimony to show that the document was intended to be the deceased individual’s will.

In Aretha Franklin’s case, the three documents that were found are messy and difficult to read.[4] There are numerous items crossed out, confusing wording, incomplete thoughts, and portions of the documents contradict each other. It is expected that numerous witnesses will testify regarding Ms. Franklin’s intent, including attorneys she consulted with regarding a potential estate plan in the past. One of Ms. Franklin’s sons even hired a handwriting expert to confirm whether the documents were actually written by Ms. Franklin herself.

There is an alternative under Michigan law that eliminates the need for witness testimony in order for a will to be admitted to probate. If a will is “self-proved,” the court will presume that the will is valid and that the deceased individual intended for the document to be his or her will. Accordingly, the court will admit the will without requiring witness testimony to prove that the will is what it is being claimed to be. To be considered “self-proved,” the will must contain specific language that is spelled out in the statute and be witnessed and notarized.”[5]

Does having a will avoid probate?

It is a common misconception that having a will means an estate will not have to go through probate. The test for whether an estate has to go through probate is if the individual had any assets titled in his or her name individually at the time of death. The most common method used to avoid probate is implementing a revocable living trust. As long as all assets are titled in the name of the trust, they are no longer in the individual’s name and the estate will not need to go to probate.

But trusts are not the only method that can be used to avoid probate. It can also be avoided if assets are titled so that they pass by operation of law. For example, assets that are held by joint tenants with rights of survivorship automatically pass to the survivor. Similarly, assets that have a designated beneficiary or payable on death will automatically pass to the designated individuals on the date of death. Because those assets are automatically transferred out of the deceased individual’s name on the date of death, there would be no assets left in the individual’s name and nothing left to go through probate.

Even if the court determines that one or all of the three handwritten documents left by Ms. Franklin are valid wills, her estate will still need to finish being probated. The confusion and controversy surrounding these documents underscores the importance of having an estate plan prepared by a licensed attorney. Not only will it ensure that your wishes are followed after your death, it will also lessen the grief and expense for your loved ones after you are gone.

[1]MCL 700.2101 – 700.2114

[2]MCL 700.2502(2)

[3]MCL 700.2502(3)

[4]Each of the three documents can be viewed, courtesy of the Detroit Free Press, at https://www.freep.com/story/entertainment/music/2019/05/21/aretha-franklin-handwritten-wills/3753633002/.

[5]MCL 700.2504