In 2018, at age 76, Aretha Franklin died without a formal will. She had, however, created two handwritten documents dealing with the disposition of her assets, one in 2010 and one in 2014.

This led to a lawsuit involving three of her four sons. (The fourth son is subject to a legal guardianship and apparently the guardian decided family litigation would not be in his ward’s best interests.) Two of the three sons wanted the 2014 document, found in a sofa beneath a pillow, to be controlling. The other son wanted the 2010 document, found in a locked drawer, to be controlling. A few weeks ago, this matter was presented to and decided by a Michigan jury. The jury’s verdict was that the 2014 document should control the distribution of Aretha Franklin’s substantial estate.

By way of background, a handwritten document not meeting the formal requirements of a will but nonetheless allowed to determine the distribution of an estate is called a “holographic” will. (“Holographic” means handwritten.) And that’s what the Michigan litigation involving Aretha Franklin’s estate was all about. Each side in the litigation was claiming the right to inherit under a holographic will.

As you might expect, states differ on what it takes to have an effective holographic will. In Colorado, the requirements are addressed in a section of the probate code. This section starts out by saying that a will needs to be in writing; needs to be signed by the testator (the person making the will) or someone acting at the testator’s direction and in the testator’s conscious presence; and needs to be signed either in front of a notary or two witnesses who saw the testator sign the will or who had the testator tell them he or she had signed the will.

But, the Colorado probate code then goes on to say that a writing not meeting these requirements is nonetheless valid to determine the disposition of an estate if the “material portions” of the document, and the signature, are in the testator’s own handwriting. In addition, court-made law makes it clear that a judge asked to accept such a document as controlling must be convinced of several essential facts: that the document in question was truly intended as a will (and wasn’t just the ramblings of someone speculating about a disposition of assets at death); that the handwriting and signature are indeed those of the testator; and that the testator was of sound mind. This may seem simple enough but, in reality, rounding up witnesses to testify to these issues — and convincing a judge on these points — can be problematic. This is especially true of the “sound mind” requirement, which can be quite technical.

And then there’s the matter of ambiguity. Writing a will is harder than you might think. That’s because the document must deal with contingencies. Since you don’t know when you’re going to die, and you don’t know who will still be around when you die, a will must include multiple backup plans.

For example, let’s assume your spouse is deceased and you have two children. One of your children has blessed you (or burdened you, depending on your point of view) with three grandchildren and your other child has authored one child. If your children are both alive when you die, you will likely want your property to go to them in equal shares. But what if they are both deceased when you check out? Do you want one of your grandchildren to get half of your estate and the other three to get one-sixth each? Or do you want them to be treated equally — one-fourth each? Depending on how much wealth you leave behind, the difference between a one-half share and a one-sixth share can be worth fighting about.

A lawyer-prepared will is going to hit this nail on the head. A holographic will, on the other hand, is likely to be silent on the matter, thereby inviting a lawsuit involving your grandchildren (who will then never speak to each other again).

Bottom line, and for lots of reasons, although Colorado law allows for holographic wills, they are a bad idea and may end up transferring more of your wealth to members of the legal profession than to your intended recipients.

Jim Flynn is a business columnist. He is of counsel with the Colorado Springs firm Flynn & Wright, LLC. He can be contacted at moneylaw@jtflynn.com.

Money & the Law columnist Jim Flynn