Larry King lived a colorful life. He was married eight times to seven women. He and his most recent wife, Shawn, married in 1997 and had two sons. In 2015, the couple drew up a complete estate plan. In 2019, Larry filed for divorce, but the divorce was not final when he died at age 89 earlier this year.
Executing the estate should have been smooth, considering the existing estate plan, even though the state laws where they lived (California) allow for estate plan changes during divorce.
But a hand-scribbled will has recently surfaced, written and signed by Larry in October 2019, two months after he filed for divorce. It leaves his estate to his five children (two of whom died in 2020) but omits Shawn.
The three surviving children, including two of her own, support the new “holographic” will. Needless to say, Shawn is contesting it.
About holographic (or handwritten) wills
Generally speaking, a will must be executed following a whole host of formalities, in order for it to be found valid. In Massachusetts, wills are governed by the Massachusetts Uniform Probate Code (“MUPC”). Holographic wills are no longer considered valid wills in the commonwealth of Massachusetts. In order for a will to be valid, it must be in writing, and the person whose will it is, the Testator, must sign the will in the presence of two witnesses. But every state is different.
In California, a handwritten will can be valid, whether or not it’s witnessed, as long as the signature and the main provisions are in the handwriting of the person writing it (the testator). Holographic wills need not be dated. If not dated and if another will exists with conflicting provisions, the existing will prevails until it can be proven that the holographic will was signed after the existing will.
A will could also be deemed invalid if the testator lacked “testamentary capacity” (or sound mind) at signing time. The “testamentary intent” (or the reason for writing it) must be written in the person’s handwriting or “as part of a commercially printed form will.”
Larry King’s holographic will is signed, witnessed and dated. His intent is written in his handwriting. At question is his mental state at the time of signing. Was he clear-headed after a series of severe health issues? What was his mental state, and was he under any undue influence when writing it?
The outcome of Larry’s estate debacle is not what is essential here. It is more important to understand the importance of a comprehensive estate plan.
When divorce meets estate planning
All a divorce proceeding needs – especially a contentious one – is more complication. Be sure not to forget that a spouse retains certain rights while the divorce is ongoing. And remember that an estate plan is much more than just a will.
To maintain as much control over your assets as possible until the divorce is finalized, there are some steps you should consider.
You are likely working with an attorney on the divorce. Discuss what can and can’t be done in your specific situation (and state).
Your will: If your state permits it, update your will, including the named executor.
Beneficiaries: Find out what you can alter and what you can’t. You may not be allowed to change beneficiaries on life insurance, IRAs and pensions, for example.
Power of attorney: Especially if you signed a durable power of attorney, consider revoking it and executing a new one naming a neutral third party.
Health care proxy: In case of an accident or severe illness, you may prefer a neutral third party to make life decisions for you when you cannot.
Pre- and post-nuptials: During divorce proceedings, any new estate plan most likely will have to align with the terms of such an arrangement.
Spouse inheritances: Many states will not let you disinherit a spouse completely during divorce proceedings but may revert to what is entitled under the state’s laws.
Trusts: Some states may let you amend a revocable trust, which would give you flexibility in what would be left to your spouse if you died during the divorce proceedings.
Your estate plan: Again, if your state permits it, create as much protection for yourself as you can. While it will imply additional costs, interim changes can be reassuring during a stressful time.
If Larry King had followed this advice and had conferred with his attorneys to protect himself during his divorce proceedings, much unpleasantness could have been avoided.
You can avoid that unpleasantness by enlisting the help of your divorce and estate attorney. And remember that many of these changes may be temporary. You will likely want to change some of them again after the divorce is final.
The arguments for estate planning
An estate plan can be the most solid set of pre-death and after-death instructions. It could include:
A will and living will: These share how your assets should be distributed, how you would like to be treated in a hospital if you are incapacitated and your end-of-life plans.
A durable power of attorney: This allows you to appoint someone to make money decisions and access your accounts if you are alive but either incapacitated or not of sound mind.
A trust: This may be more protection than you need, but a revocable trust leaves you the option of changing things, whereas irrevocable trusts move your assets totally out of your control (a tax-saving tool if you have a high-value estate).
Whether your finances are complicated or straightforward, you owe it to yourself and your loved ones to be prepared. Even if you’re not headed toward divorce.
Rest in Peace Larry King. You continue to entertain us.
For more information on estate planning, check out our previous blog, Two Key Documents You Need, Pandemic or Not.
This article originally appeared in Wicked Local.