Revisiting the Holographic Will

It seems that it is always a good time to review this.  The other day a client asked me if an elderly friend could “dictate” the terms of his will and then sign the transcribed document.  In Tennessee, the answer is no.

            Since 1941, the law in Tennessee has been that a will must be signed by the testator and two or more attesting witnesses who must sign as attesting witnesses in the presence of the testator and in the presence of each other. 

 

            The only significant exception to this is the holographic will which is defined in Pritchard on Wills and Administration of Estates (5^th Ed.) as “a paper writing appearing to be the last will of a deceased person, all the material provisions of which are written in his own handwriting” and “the testator’s name must have been subscribed to it, or inserted in some part of.”  There must be proof by at least two people that they recognize the deceased’s handwriting.

            Note the important part – all the material provisions must be in the testator’s own handwriting.  This is the part that seems to get so often overlooked in the age of word processing. 

            The bottom line is this – there is nothing wrong with someone writing their own will – but it must meet all of the requirements of a holographic will.  If not,  it is completely void. People have occasionally said to me that they don’t mind the document being void as long as it expresses their intent, but this is meaningless. If you die without a will your property passes by the laws of intestate succession—which may or may not be what you intended.  In this era of online will kits and the like, the crucial distinction between a holographic will, a properly attested will and a legally void document often gets overlooked.  This is one of those important times when it just makes good sense  to review the terms of the will with an attorney and have them handle both the preparation and execution of the document itself.

Lessons from Junior Kimbrough

I teach a class called “Music Industry Law” and at least once a semester I try to update my students on a relevant pending court case or recently settled dispute.  This semester I had a difficult time finding anything relevant to talk about (I wasn’t about to try and discuss the case or net neutrality).  Finally, out of desperation I found a citation on the always entertaining Courthouse News Service website concerning the Mississippi Supreme Court’s ruling in the case challenging the last will and testament of David (“Junior”) Kimbrough. 

Aereo

I was interested in this case both because I knew one of the people involved and because I really like Junior Kimbrough’s music.  On a side note,  his album Most Things Haven’t  Worked Out is the best title for a blues album ever. 

The gist of the case was that the court upheld Kimbrough’s will and his intent to leave his entire estate to his girlfriend Mildred Washington instead of the four of his children who came forward to challenge the will as well as “his supposed 36 children” in all.  Clearly, Junior Kimbrough was a very busy man. 

There is actually an important point here.  Kimbrough clearly had very specific intentions with respect to his estate.  He made sure those intentions would be carried out by executing a formal last will and testament.  The will, properly executed withstood challenge.  This should serve as a reminder to anyone who is contemplating executing a will – stop thinking about it and get it done, especially if your estate involves intellectual property and especially if your intentions are anything different than simply leaving your assets to your next of kin.  In this case, for Mr. Kimbrough, things seem to have worked out. 

It's All Latin to Me

Lawyers have become better at writing in plain English since I began to practice law in the Middle Ages. However, we could all do a better job at explaining certain things. One of the reasons that lawyers write in a certain way is to make sure that the point they are making is completely understood and not subject to interpretation. That’s why lawyers will occasionally use obscure Latin phrases. The other day I prepared a will for a client and she asked what the phrase per stirpes meant; a perfectly valid question.

Per Stirpes is legalese. It technically means a method of dividing up a share of an estate to a group or class of distributees, who take the share that a deceased person would otherwise have been entitled to. In other words, if you intend a share of your estate to go to your brother and he predeceases you AND you want the share that he would have received to go to his children, this is how you achieve that.

However, although there is an important reason to use this term in the document itself, it is equally important to make sure that the client understands what it means.

Next week we’ll discuss nunc pro tunc.

National Estate Planning Awareness Week

The folks at the National Association of Estate Planners and Councils have alerted me to the fact that this is National Estate Planning Awareness Week. Ordinarily, I am a bit wary of these things but because I believe that good estate planning is essential for everyone, I am happy to remind people of the following facts.

1. Young people with small estates and no dependents need, at the very minimum, a health care directive (or durable power of attorney for health care as we call them in Tennessee) so that they have someone selected to handle health care decisions for them in the event of an emergency.

2. For families with minor children, wills are essential, to appoint a guardian and provide for the children in case something happens to both parents.

3. For anyone with an estate of any value, planning is essential to avoid probate where possible, to avoid state and federal estate taxes, and to have some control over where your property goes.

4. Protection of assets may also be important, especially in dealing with heirs who may have ‘issues” (ranging from bad marriages to financial mismanagement to drug or alcohol problems).

The more I get involved in this area, the more I see how simple planning can be so beneficial for people at all stages of life. I also know, from firsthand experience, how easy it is to put this stuff off and be in denial about the inevitable.

This stuff is essential. If you have any questions regarding these issues, feel free to contact me.

The Man Who Needed a Will

I have spent quite a bit of time over the last few years preaching to people about the need to have a Will. I can think of no better cautionary tale than that of Steig Larsson, the best-selling author of the Millenium Trilogy books.

Larsson died in 2004, before the books were published and became an international phenomenon. Larsson also died without a Will, leaving his companion of thirty years, Eva Gabrielsson, nothing. By Swedish law, his Estate went to his next of kin, his brother and father, from whom he was reportedly estranged.

I am pretty sure Larsson did not plan to die at 50. It is also unfair to speculate as to what his intent would have been for his Estate (which of course had not been fully realized at the time of his death). However, just like the sad case of Steve McNair, this just seems plain irresponsible, especially for a man whose real life career was reportedly as dangerous as that of his journalist protagonist ( and who, reportedly smoked three packs of cigarettes a day). I really hate hearing stories like this.

Random Thoughts about Estate Planning

I read a great quote about estate planning on Matt Homann’s site The (Non)Billable Hour. He quoted Sue DeRoss who stated:

“Everyone gets organized at some point. They just might not be around for it.”

I think a lot about estate planning and especially how to convince people with property and children of the need to have a will. You cannot imagine how difficult it is to get people to focus on this important area. (As an aside, you also would not believe the number of people who start wills and never finish them. I have one file in my office which is over twenty years old.)

The other problem we, as lawyers, are now facing is people who decide to use online “will kit” providers and convincing then that these are not always the best choice.

Now we have a small amount of vindication from The New York Times. Times financial writer Ron Lieber did a survey of the three leading online will providers: Legal Zoom, Legal Writer, and Buildawill. He entered his information in each program, printed all three resulting documents and then took the documents to leading estate planners in New York for a thorough (although admittedly biased) review. Lieber discovered that while each of the documents was generally well-prepared, none of the online services could address the important kinds of questions people really want to ask their attorneys when they are doing estate planning: most often about kids and divorces. Nor could the kits offer any alternatives. Most of all, he found that the online kits do not do a good job of explaining the formalities which need to be observed with the proper execution of a will. The other thing that was remarkable to me was the cost of the online service was not that much less than hiring a lawyer to do the work and to create an individualized document. Most attorneys I know do these services on a flat fee basis, so for a simple will you might be talking about the difference of around $100.

This is not a general diatribe against the online forms business. I just believe that in two (2) important areas especially, wills and divorces (more on that later), it is very important to consult with an attorney to answer questions and prepare the documents.

In Case Delaware Indians Attack in East Nashville Mortally Wounding You and Scalping Your Son

I am always reminding people of the necessity of drafting wills, in order to take care of estate planning before there is an urgent need. However, any urgency I could suggest pales in relation to that faced by Jonathan Jennings. The Nashville Retrospect, which is fast becoming my favorite local reading, recently reported on the discovery of Mr. Jennings’ will, executed in 1780. Mr. Jennings, it appeared, had been mortally wounded by Delaware Indians in what is now my neighborhood in East Nashville. This will was apparently the first will to be recorded in Davidson County, Tennessee and states as follows:

In the name of God Amen. I Jonathan Jennings of North Carolina on Cumberland River having this day Received several wounds from the Indians and calling to mind the mortality of my Body do make and Ordain this to be my last will & Testament. And first of all I give and recommend my soul to God that gave it and my body to be disposed of at the Discretion of my executors. And as touching my Worldly affairs I dispose of them in manner following Viz… Item… I give and bequeath to my… It is my Desire that my Estate be Equally divided between my Wife my sons William, Edmond, Elizabeth Haranor Mary, Aggy, Anne & Susannah all but such a part as shall be hereafter disposed of … Item… I give and bequeath to my son Jonathan who was Scalped by Indians and rendered incapable of getting his living a Negrow girl Milla & her increase who is to remain with my beloved wife till my son comes of age. Also a Choice Rifle Gun & a Horse and Saddle Item I give my beloved wife Four Choice Cows and Caves. The Wards Milla and her increase and the Ward Jonathan being interlined I devise that my Loveing Wife and my son Edmond be Executrix & Exectutor of this my last Will & Testament, Jonathan Jennings…Signed Sealed & Published in Presents of Zach White, Js. Robertson, William Fletcher

This is pretty fascinating reading and another reminder of the need for proper estate planning, at nearly every stage of life. It also gives me a whole new perspective on my East Nashville neighborhood.

Who Needs a Will?

I have been on a quiet mission for a few years to encourage people to execute wills. Often, I have had people ask me, not unreasonably, why they might need a will.
I found a very elegant and succinct answer by Nashville attorney Barbara Moss in a recent article in The Tennessean. In answering the question “So, who needs a will?” Moss writes:
Anyone who owns property with no co-owner or beneficiary or who has children young enough to need a guardian needs a will. Someone who has a complicated family situation, such as children by a former spouse, or a taxable estate (in Tennessee, any estate over $1 million dollars), especially needs a will.
Moss goes on to write, as I did last year, about Steve McNair and how he could have saved his family thousands of dollars in estate taxes had he done some basic estate planning.
Also, since a large part of my practice caters to songwriters and recording artists, it is important to stress the need to divide the royalty income and/or copyright income the way you want it divided rather than either by the laws of your state (i.e. intestate succession) or by a well meaning but perhaps uninformed spouse. As Gary Roth, from BMI recently wrote:
Your state legislature determined what you’d likely want to do with your personal property and wrote the law that way, but you may have wanted to do it differently. That’s what you can accomplish with a will – but only if you create one.
From a personal standpoint, I know that people don’t like to contemplate their mortality, and a will makes you do that. On the other hand, the peace of mind that comes from knowing that you have done everything in your power to look

New Years Resolutions Repost

Happy New Year. I am going to repost something I wrote nearly a year ago which I think is relevant for this, the first day of 2010.



I have always had an attraction/repulsion relationship with New Years’ resolutions-while I am drawn to the concept of change and renewal, I hate the stereotypical pattern of adopting resolutions in January just to abandon them by February. Think of all the people you see on the treadmills at the YMCA during the first week of January and how they seem to fade away by the Super Bowl.

However, a client called me last week, energized by the New Year (and perhaps the new administration). He wanted to get his will finalized, his business interests and intellectual property interests organized and in general take care of a lot of the small details that had been left hanging for some time. I was impressed and somewhat inspired by this and began my own list of dreaded tasks that I had been putting off for some time. January and February are probably great months to organize one’s professional and personal life (“to get your life in order” as one of my old English professors used to say).

If you have a will (and you should have a will) you should see that it’s up to date. If you own a corporation or a limited liability company, you should make sure that your organizational documents are up to date. If you own copyrights or trademarks, you should review their relevant dates. If you’re like me you should also hit the Y, go to bed earlier eat more vegetables, etc. but those are different resolutions for a different post.

Making New Year's Resolutions on January 29

I have always had an attraction/repulsion relationship with New Years’ resolutions-while I am drawn to the concept of change and renewal, I hate the stereotypical pattern of adopting resolutions in January just to abandon them by February. Think of all the people you see on the treadmills at the YMCA during the first week of January and how they seem to fade away by the Super Bowl.

However, a client called me last week, energized by the New Year (and perhaps the new administration). He wanted to get his will finalized, his business interests and intellectual property interests organized and in general take care of a lot of the small details that had been left hanging for some time. I was impressed and somewhat inspired by this and began my own list of dreaded tasks that I had been putting off for some time. January and February are probably great months to organize one’s professional and personal life (“to get your life in order” as one of my old English professors used to say).

If you have a will (and you should have a will) you should see that it’s up to date. If you own a corporation or a limited liability company, you should make sure that your organizational documents are up to date. If you own copyrights or trademarks, you should review their relevant dates. If you’re like me you should also hit the Y, go to bed earlier eat more vegetables, etc. but those are different resolutions for a different post.

You need a will.Period.

About a year ago, I wrote a letter to all of my clients telling them that they needed to have wills, especially if they had children or estates of any consequence. Here’s how the letter read:

To my clients and friends:

I don’t want this letter to sound presumptuous. However, recently, two events made me think seriously about one of the basic legal necessities: the need to have a will. In one case, a friend passed away without a will, leaving chaos and confusion in her passing. Although various people assumed that they knew what her wishes were, no one knew for sure. I am afraid that her intentions may not be carried out.

In another instance, my ten year old daughter began asking what would happen to her if both her parents died. Although I assured her that we had wills, a trust and a guardian in place for her, I also had to tell her that my wife and I spent several uncertain years without wills while we debated the issue of who her guardian would be.

I have been thinking a great deal about these issues and these events just reinforced the need to have a will in place to lay out your specific intentions should something happen to you prematurely. If you don’t have children, it’s still important to make your wishes known. If you do have children it is a necessity to provide for their care and support. Also, since a lot of my clients are songwriters and artists, it is important that you think about the disposition of your intellectual property. You need to be aware of specific provisions of the Copyright Act that might apply to your circumstances.

None of this is meant to sound alarming but I was beginning to think that it was irresponsible not to at least address these concerns with my clients. If you want to consult with me regarding drafting a will, trust or estate plan, please don’t hesitate to call me or e-mail me. Also, if you have a will that is more than five years old it is always a good idea to review it to make sure it is up to date with your current situation. I have learned that the selection of a guardian for minor children often changes as our children grow. It’s also important to have a Durable Power of Attorney for Healthcare and a living will. Let me know if I can be of assistance to you in any of these areas.

A couple of my clients told me that they thought this was good marketing on my part, but it was not meant as a marketing tool; I was (and I am) really serious about this. I have seen too many people not have their wishes carried out because of poor or non-existent estate planning. This is why I have grown more interested in this area. It is absolutely essential.