Larry King Estate
By Cody Ross, Esq., Intern for
AnnMichelle G. Hart, Esq.
April 22, 2021
The ongoing case of Larry King’s handwritten will and whether it is considered valid is a perfect example of why following the laws of will execution and retaining an estate planning attorney are critical. The background of this case is that Larry King wrote a handwritten will, that was not witnessed by any other individual, that explicitly disinherited his wife, Shawn, and divided his estate equally among his five children. This holographic will (a handwritten and unwitnessed will) expressly revoked his will from 2015 that included Shawn in the disbursement of Mr. King’s estate.
This has led to an extensive amount of controversy and litigation as Shawn is fighting to get the 2015 will reinstated and receive her portion of the will. Shawn has recently filed to become the executor (the person in charge of enforcing the wills provisions) of King’s will. This will allow her to be in charge of distributions and wrapping up and liquidating the Larry King estate. The hearing to decide whether Shawn can become the executor is scheduled for early May. Shawn is also claiming that the holographic will should be invalid for three separate reasons. First, she argues that because King was recovering from COVID and was in kidney failure, he did not have the proper capacity to create a valid will. Second, she is arguing that Larry was subject to undue influence from his children. Lastly, Shawn is arguing that the holographic will goes against the terms of marital agreements between herself and Larry.
Larry King’s estate and the litigation around this holographic will is the perfect example of why individuals should retain an estate planning attorney and the problems that can arise from a poorly or improperly written will. This article will use this example and describe what the common mistakes are that were made by Mr. King and how he could have avoided them, as well as what Washington State law says about this issue.
The first major area of contention is the creation of a holographic will. A holographic will is a will that is handwritten by the testator (the person whose will is being written) and is not witnessed by any other individuals. Many states will not accept holographic wills. Those states that do will only accept handwritten wills if they follow the normal rules of will construction, i.e., having two witnesses at the signing of the will.
Washington State does not permit a true holographic will – ie: one that is handwritten with no witnesses. Washington law requires two attesting witnesses for a will to be valid. If the handwritten will is witnessed and follows all the formalities of a will under Washington law, then it is deemed valid, and is no longer considered a holographic will. An alternate way for a true holographic will to be admitted to probate in Washington is for the will to have been validly created when the testator was living in the another state that permits holographic wills. If such a valid holographic will is created, and then the testator dies in Washington, the will is valid.
The other problem that Larry King’s estate demonstrates is the statutory rights of spouses and family members. Most states have laws about what certain family members, especially spouses, are permitted to receive from a testator’s estate, even if they were left out of the will. Spouses are almost always permitted to receive an elective share of the testator’s estate, even if the spouse is not mentioned in the state. That is the case in Washington state where the testator’s spouse owns half of an interest in all community property (jointly owned property) as a right of being married, and is entitled to receive a gift of up to $125,000 from the estate, regardless of whether they are mentioned in the will or not.
The other issue that arises from statutory rights of spouses is when the spouses are going through a divorce. If a testator dies prior to the final divorce decree, the spouse is treated as if the divorce proceedings were never started and receives their share of the estate. This means that in Larry King’s instance, the court will not consider the fact that Larry and Shawn had filed for divorce. Because the divorce was not finalized prior to Larry’s death, Shawn is still treated as his spouse under the eyes of the law. The same is true in Washington state.
The best way to avoid these problems is to hire an estate planning attorney to complete your will. This will allow you to avoid having your will potentially discredited and the lawyer will be able to advise on how to minimize shares to people that you do not wish to take from your estate. The language in the will is crucial because the will may not be placed in probate until years after its execution, and judges and lawyers may have to argue over your intent and wishes. By hiring an attorney to write your will, they can help you create the clearest language to get your final wishes across. Another benefit is that when a lawyer drafts a will for you, the will is presumed to be valid, and must later be found invalid if it is to be invalidated at a later date. If you write your will yourself, it is not presumed valid and will be easier to overturn.
Also, by hiring an attorney and creating a paper trial of your wishes, through emails, conversations with your attorney, and drafts of wills, it raises the presumption of your competence and raises the bar required to overturn your will. The last main benefit is that a lawyer will now of ways to prevent your will from being challenged, such as a no-contest clause. A no-contest clause provides that a person cannot challenge your will, or they will lose all interests they have in the will. Washington state allows for such provisions, as long as good-faith challenges are excluded from the penalty of the no-contest clause.
By hiring an estate planning attorney, you can avoid many of the pitfalls and issues that are troubling the Larry King estate. An attorney will be able to guide you through the complicated process and ensure that your final wishes are honored after you are gone. No estate is too small to avoid retaining an attorney. If you wish to have the highest chance of your wishes being honored, having an estate planning attorney is the best way to do that.