Aretha Franklin drafted her own will and somehow it ended up buried in her couch. Add her name to the long list of celebrities whose deaths spurred a courtroom battle over their estate.
It is puzzling why so many people engage in do-it-yourself wills. In Franklin’s case, it is mind-boggling. It could not have been lack of money to hire a lawyer – Aretha Franklin’s estate when she died in 2018 was valued at $18 million. It could not have been lack of time – her sofa will was signed 4 years before her death; surely, she could have found 1 free afternoon during that time to get her affairs in order. It could not have been a lack of contacts – she had been communicating with an estate planning lawyer for months, if not years.
Judges are, to put it mildly, frustrated over the DIY will phenomenon. In one case, an appellate judge tartly observed, “It is difficult to understand of persons of good business capacity and experience, with abundant means, and residing accessible to competent legal talent, will attempt to prepare their own wills…such persons, failing to recognize the importance of the undertaking, many times inflict upon the courts difficult questions and subject their estates to troublesome and expensive litigation.”
There is a long history of do-it-yourself wills being money-makers for trial lawyers. In his poem The Jolly Testator Who Makes His Own Will, Lord Charles Neaves counseled lawyers:
“You should never forget the profession’s best friends;
So we’ll send round the wine, and a light bumper fill
To the jolly testator who makes his own will.”
Types of Do-It-Yourself Wills
Do-it-yourself wills come in several types. The type most people think about is a holographic will, which is entirely in the testator’s own handwriting. Texas accepts holographic wills, but many states do not. For that matter, many countries do not accept holographic wills.
Another DIY type is the form will, which is a boilerplate document with blanks for the testator to fill in beneficiaries and assets. Unfortunately, some testators get confused and either fill in the blanks with contradictory information or skip filling them in completely.
The last common DIY type is the software will. These are purchased from companies or provided for free via the Internet. The testator’s answers to questions are used to populate fields in the software. The final document is printed out for signature.
Problems With Do-It-Yourself Wills
Regardless of the type of DIY will, many of them share the same failings.
They do not contain state-specific language. Texas, for example, provides a nifty probate shortcut called independent administration for wills that contain specific language. Few DIY wills contain the required language.
They contain confusing or incomplete language. In one Texas case, the testator carefully listed an entire page of specific bequests to certain beneficiaries, and then failed to address what happened to the rest of her estate. The court accepted her will for probate, but still had to do an heirship proceeding to determine who received the remainder of her estate. In another case, the testator named himself as the sole beneficiary of his estate. Thus, when he died, so did his sole beneficiary.
Some people intend their hand-drafted wills to be merely temporary. Dying with a bad will, however, is often worse than dying with no will at all.
The legacy left by Aretha Franklin was a DIY will, a lengthy court battle, and a tarnished reputation. There must be a better way to get respect.
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Attorney Virginia Hammerle has practiced litigation and estate planning for 40 years. She is founder and managing attorney for Hammerle Finley Law Firm.
