Aretha Franklin may have done the right thing in writing down her wishes. However, she made a costly mistake resulting in an expensive probate estate battle over a multimillion-dollar estate, says a recent article from The Washington Post, “Aretha Franklin’s will was in her couch. Here’s where to keep yours.”
Three of her sons battled in probate court over handwritten wills, one of which was found under her couch cushions. Another was found in a locked cabinet. They hired probate attorneys, and her family was put into a pricey, heart-breaking and public battle by failing to be clear about her final wishes and improperly storing the wills. This is not likely the legacy you want to leave.
If you have a will, keep it in a place where it will be secure and easily found. Don’t put it in your bank’s safe deposit box. The bank will seal the box when it learns of your passing, and your executor will have to go through a probate process with the bank to gain access to it. This will add a layer of delay and stress to administering your will. Especially since your loved ones will be making a lot of effort to gain access to the box without even knowing if your will is inside. If this is the only option, you may want to add your executor as an owner of the safe deposit box and make sure they have a copy of the key.
What about keeping the will at home? A copy of the will could be kept in a fireproof and waterproof safe. However, be sure that someone else has a duplicate key or combination code. Your executor, personal representative, or another trusted person will need to be able to access the will. Otherwise, the general recommendation is to keep it in a safe place in your home.
In some jurisdictions, you can store your original last will with the court. You give your court a sealed will for a one-time fee. The will can then only be released to you or the person you designate in writing. Remember, the will becomes a public document after you die as part of the probate process. Unfortunately, California probate court has no such depository for wills while people are living.
Wills can also be stored online in some jurisdictions. However, most states don’t yet recognize electronic wills, so your executor would need to have the originally signed copy, even if you have one stored in the cloud. Remember, no matter how secure a site is, even the Pentagon was hacked. Your will could be compromised in a data breach.
Wherever you store your will, estate planning attorneys often recommend leaving a letter of instruction to serve several purposes, including letting family members know your will exists and where it is stored.
To make things easier for your family during a difficult time, put together a binder and include a letter with a list of important information. The list should include assets, names and contact information for the professionals they’ll need to know, including your estate planning attorney, financial advisor and CPA.
When you update your estate planning documents, which should be done every three to five years, or when there is a trigger event in your life (birth, death, divorce), destroy any old wills. Your estate planning attorney will add a provision saying the new will supersedes any previous versions.
If you don’t have a will, state law will dictate how your property will be distributed, which may not be what you want. Known as dying “intestate,” your assets could go to a relative you haven’t seen in decades or people you don’t know or like. Your children, siblings, or parents may not inherit your property, and fighting may occur, especially if significant sums of money are involved.
Having a will and making sure people know where it is doesn’t always ensure that there won’t be a battle over your estate. However, it may prevent a war.
In any situation, having to hire a probate lawyer and go through a full blown probate case is not ideal. We typically recommend both a will and revocable living trust to achieve this.
If you need help in setting up your estate plan to avoid this, or if you are going through a probate case, we are always happy to help. Our Los Angeles probate attorneys can guide you through California's probate process.
If you have any probate questions, schedule a free appointment with us through our online appointment page.
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Reference: The Washington Post (July 14, 2023) “Aretha Franklin’s will was in her couch. Here’s where to keep yours.”
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