Matters of Life and Death, Almost Don’t Count 

By: Attorney Jehan Crump-Gibson Thinking about your mortality is not fun. For some people, planning for it seems unimaginable. This is one of the reasons why a lot of people do not take any steps to get their affairs in order. On the other hand, there are people who think about it but because of misconceptions, lack of knowledge or even superstitions, they do not formally finalize their wishes. Often, these people will verbally communicate what they want to certain loved ones or fill out a worksheet and tuck it in a desk drawer. While these things certainly help someone contemplate their wishes, they have no legal effect! They will not be binding if you pass away. In Michigan, for a Will to be valid, it must be in writing (or typed), signed by the Testator (the person who is making it out), and witnessed by two individuals. If a document does not meet the requirements for a formal Will, all may not be lost. A Holographic Will (sometimes known as a Handwritten Will) can be valid if key portions of it are in the Testator’s writing, and it is dated and signed by the Testator. Random unsigned notes will not suffice! Let’s take Gayle, who is a 76-year-old retired educator. She is widowed with three children and six grandchildren. Gayle has always believed that if she went to have her Will done, she would somehow speed her death up. She does want her children to know her wishes, though. She passes a workshop for seniors one day at her credit union. While she does not attend, she picks up the materials. One of the handouts is a planning booklet that includes a notes section where attendees can write down their wishes. It is designed to help them think about what they would want to be in their estate plans. When Gayle gets home, she writes in the notes section that she would want her house to go to her daughter Shanna who lives with her and everything else to be split equally between her children and grandchildren. She does not sign or date the notes, but she is satisfied that since they are written down, they will be honored upon her death. Gayle lives another seven years before she passes away from heart failure. After Gayle’s funeral, Shanna shares with her siblings Todd and Ashley what Gayle’s wishes are. They ask Shanna if Gayle had a Will. She tells them that she found a booklet that Gayle wrote her wishes in. Todd and Ashley are completely dismissive and just assume that the three of them will split what Gayle left behind. Frustrated, Shanna schedules a meeting with a lawyer and takes the booklet that has Gayle’s notes with her. The lawyer has the tough task of telling Shanna that the notes in the booklet are not a valid Will and it will be hard to prove that they qualify as a Holographic Will. The notes are not signed and dated and there is no other evidence that Gayle intended for the notes to be her Will. Gayle certainly cannot testify. It will likely be determined that Gayle died “intestate” or without a Will. When someone dies intestate, state law determines what happens with their property. In Gayle’s case, her three children will split her property equally. This means that unless Todd and Ashley agree, Shanna does not get the house. She either must buy her siblings’ interest out (if she can afford it) or hope that they don’t wish to sell the property. If they do, she will no longer have a place to stay. The grandchildren are not entitled to anything. This is not what Gayle wanted but unfortunately, there’s nothing that can be done. Gayle was a brilliant educator, not an estate planning attorney. She simply did not realize that her failure to formalize things would backfire. Her daughter Shanna was left behind realizing that ‘Almost Doesn’t Count’. Estate planning should not be a do-it-yourself project. It is crucial to have your estate plan done with the assistance of a licensed professional who specializes in estate planning. Attorney Jehan Crump-Gibson is the Co-Founder and Managing Partner at Great Lakes Legal Group PLLC, where she concentrates her practice in probate and estate planning, business and real estate matters. Great Lakes Legal Group is a growing black-owned law firm serving clients throughout the state of Michigan and in federal courts across the country.  Jehan has served as Faculty for the National Business Institute and the Institute of Continuing Legal Education concerning business, probate and estate planning matters. She is a legal analyst with Fox2 Detroit’s The Noon and the author of the book A Matter of Life and Death.