The Problems with Emergency Wills

How many of us have done a quick handwritten Will the night before leaving on a plane trip (before Covid)? I read that Larry King's estate is now tied up in a contest over a handwritten Will. He made the handwritten Will towards the end of 2019, presumably as an emergency Will, shortly after filing for divorce.

He and his wife had an estate plan, but in California, even if you file for divorce, your soon to be ex-spouse remains a beneficiary of your Will until the divorce is final, or unless you make a new Will to leave out your spouse. Larry King's newest Will left out his spouse.

There are all kinds of problems with handwritten Wills. Such Wills are legally referred to as "Holographic" Wills. California allows Holographic Wills if all the provisions for who gets what are in the decedent's handwriting and it is signed and dated. If there is a prior Will, unless the Holographic Will expressly revokes the prior Will, the Holographic Will supersedes any conflicting provisions, but all the other provisions of the prior Will still apply.

Another problem arises when there is also a Trust with most assets held in the name of the Trust. I would imagine Larry King had a Trust. Unless the Holographic Will expressly amends the Trust, the Holographic Will may not have any effect. A Will only applies to a decedent's assets left outside the Trust. The Holographic Will wouldn't necessarily change who gets what under the Trust unless it refers to the Trust.

Finally, by its nature, a Holographic Will is more likely to be challenged based on mental capacity or undue influence. Without a witness for proof, a Holographic Will could be a forgery or otherwise fraudulent. Larry King had lawyers, why didn't he have his estate plan properly amended? Self-help can be a disaster, especially after a death when nothing can be changed.

In Larry King's case it is all very unfortunate since he appears to have reconciled with his spouse by the time he died and both she and at least two of Larry King's children were surprised when the Holographic Will surfaced.

The moral of the story is: If you feel compelled to make an emergency handwritten Will, for whatever reason, don't delay making a proper amendment to your estate plan as soon as possible after the emergency passes.

Planning Ahead Column:

By Lisa Alexander, Esq.

Jakle & Alexander, LLP,

1250 Sixth Street, Suite 300, Santa Monica, CA 90401

Main Line: 310-395-6555

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