San Diego Estate Planning Lawyer Blog
Susan Cox Powell disappeared in December 2009. The former West Valley City, Utah, mother of two was last seen attending church with her family. Police and West Valley City residents long suspected Powell’s husband was responsible for her disappearance (and presumed death). Tragically, the husband killed himself and his children by exploding his home in Washington State in 2012. Another suspect, the husband’s brother, killed himself this past February. On May 21, West Valley City police formally closed its investigation into Powell’s death, citing a lack of evidence and living suspects.
Police disclosed several hundred pages of documents related to the Powell investigation, including a handwritten four-page note labeled “Last Will & Testament for Susan M. Powell.” The document was not a traditional will. It made no distribution of Powell’s property or affairs, aside from a request that her parents be “very involved & in charge of” her children’s lives. Mostly, Powell’s will is a statement for the benefit of police regarding her decaying marriage and the fear that her husband might try to kill her. “If I die,” Powell wrote, “it may not be an accident, even if it looks like one.”
Are Handwritten Wills Valid (or Advisable)?
Aside from the lack of substantive testamentary provisions, Powell’s handwritten will would be considered a valid legal document in most states. Under California law, for example, a handwritten or holographic will is legal so long as the signature and all “material provisions” are in the person’s own handwriting. No witnesses are necessary for a holographic will. In contrast, a typewritten will must be witnessed by at least two persons. Powell’s will was entirely in her own writing, signed and dated.
Holographic wills are inadvisable as estate planning documents. There are extreme situations where a person faces imminent death and lacks access to an attorney. There’s the famous case of Canadian farmer Cecil George Harris, who etched a (legally valid) holographic will on the fender of the tractor he was trapped under. But in general, wills drafted without the assistance of a qualified estate planning attorney are problematic for probate courts to verify and interpret.
Keeping Your Will Safe
Police found Susan Powell’s holographic will in her bank safe deposit box. This is not unusual. Many people choose to keep their will together with other important papers in a safe deposit box. Powell’s box, for instance, also contained her birth certificate, some savings bonds and a DVD containing a list of her assets. It is not advisable to keep any estate planning documents because of the difficulty of accessing the safe deposit box after a death has occurred.
While there’s no legal requirement to keep a will in a safe deposit box, it is imperative you keep the original document in a secure-yet-accessible location. Probate courts require original signed wills and will not accept photocopies in most cases. Aside from a safe deposit box, people frequently keep their original wills in a home safe or lock box. You might also ask your estate planning attorney to keep your will for you.
If you do keep your will in a safe deposit box, you must also ensure that your designated executor or agent can access the box itself after your death. Many banks won’t accept a general power of attorney form. You may have to execute a specific power of attorney with the bank. You can also add your agent or executor as a co-owner of the box, ensuring he or she can immediately access its contents. Absent such advance planning, the bank may refuse to release the contents of the box to anyone without a court order (as was necessary in the Powell case).