Estate Planning Practice Blog

Can You Witness a Will and Still Take?

Can an interested party be a witness to a will? In other words, the will leaves you something and you are one of the witnesses subscribed to the will. Is the gift in the will to you invalid?

It depends.

First, a duly executed will is not invalid because signed by an “interested witness” (i.e., one who has also been devised property under the will); such a person is still a “competent” witness to the will's validity. See California Probate Code Section 6112 (a), (b). Click here to see the CA Probate Code to review pertinent sections.

Although the will itself may be valid, decedent's testamentary transfer to the “interested witness” may be become invalid.

Unless the will is also witnessed by at least two other disinterested witnesses, there is a rebuttable presumption affecting the burden of proof that the “interested witness” procured his or her devise by duress, menace, fraud or undue influence except that this presumption does not apply to witnesses given a devise “solely in a fiduciary capacity” (e.g., as trustee). See California Probate Code Section 6112 (c).

The interested witness may still take that portion of the devise (i.e., gift) to which he or she would have been entitled had there been no will—i.e., the devise under a prior will or interest under the laws of intestate succession. See California Probate Code Section 6112 (d).

While this is a very specific legal analysis and may vary based upon the facts at hand... the rules are pretty clear:

1. Disinterested persons are best witnesses to a will.

2. An interested person can be a witness if there are also two other witnesses (California requires two witnesses normally, but three are not uncommon).

3. If an interested person is a witness, the will itself is likely still valid unless there are other defects.

4. If all else fails, the interested person will likely only take their share had there not been a will.

If this sounds complicated, which it is, please consult with your attorney regarding any wills you may have a question about as this analysis is very fact dependent and may be interpreted differently by the courts. The courts tend to want to determine what the testator's intent was and follow that despite what defects there may be.

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Estate Planning, Probate and Trusts involve complex areas of law. Individual circumstances must be considered before any advice can be given.  The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as it may be appropriate.

Notary Issues: (1) Name Changes and (2) Not Driving?

Name Changes.
If you recently changed your name and own real property, please consider doing a quitclaim deed from your old name to your new name while you still have identification for proper notarization.

We had a situation come up where a client owned real property for many years under one name and changed their name ... and changed their identification to match their new name.  This can create a hassle as California notary laws require that any identification for proof of the signer's identity be no older than 5 years. Our alternative pursuant to the California notary laws was to find two subscribing witnesses who knew this individual under their former name.

A quitclaim deed would be as follows:

Grantor Marty Doe hereby quitclaims to Marty Smith ...

Consult with your attorney to see if you should prepare and record a quitclaim deed to reflect your new name and for more specific information on how this deed should be prepared.

Not Driving?
If you are not driving or otherwise giving up your California Driver's License, please obtain either a California Identification Card or Senior Identification Card from the California DMV. The procedure is easy, especially when you make an appointment online. There is no charge for a Senior Identification Card. It is always a good idea to have current identification available for notarial and other purposes.

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Estate Planning, Probate and Trusts involve complex areas of law. Individual circumstances must be considered before any advice can be given.  The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as it may be appropriate.

Same Sex Marriage Primer

Marriage involving a same sex couple is now legal in California. There have been many questions as to how this is handled. Please click here to open up a question and answer sheet prepared by a coalition of agencies interested in these issues.

Remember any relationship should involve asking threshold questions about estate planning too.

You always want to have the appropriate documents in place to answer the question -- what happens when I die? It does not matter who you are... everyone needs to be protected and to have things in place for their loved ones.

If you click on the attachment, please note that it is being provided for informational purposes only and does not constitute an endorsement by Tredway, Lumsdaine & Doyle LLP on any related issues.

How Long Should Probate Remain Open?

Speaking of probates, an estate should be opened for no longer than one year or 18-months without filing a petition to close or a status report.  If you are a beneficiary to a probate estate opened longer than this time period, you may have grounds for demanding a status report, filing objections or otherwise (in layman's terms) inquiring what's taking so long with the court.

The one year period is for estates where a federal estate tax return is not required.

The 18-month period is for estates where a federal estate tax return is required.

If, however, the estate's personal representative (also an executor or administrator) fails to petition for final distribution or to file a verified status report within one-year/18-month deadline under California Probate Code Sections 12200 and 12201, and the court finds that the prolonged administration was caused by factors within the representative's or attorney's control and not in the best interests of the estate, the statutory compensation may be ordered reduced.

To this extent, court discretion re statutory compensation is properly exercisable. See California Probate Code Section 12205.

Consult with your attorney to see what your rights are as a beneficiary of a probate estate.

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Estate Planning, Probate and Trusts involve complex areas of law. Individual circumstances must be considered before any advice can be given.  The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as it may be appropriate.

What If Your Bank Fails?

On everyone's mind these days... check out Liz Pulliam Weston's webarticle on this very timely topic. She has excellent information and things to ponder. Click here for more information.

On a related topic, with regards to living trusts, make sure your Schedule A is updated annually to reflect all of your bank accounts, financial accounts and other assets including real property (real estate) held in your trust. Be sure to transfer these assets as appropriate with advice from your attorney.

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Estate Planning, Probate and Trusts involve complex areas of law. Individual circumstances must be considered before any advice can be given.  The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as it may be appropriate.

What Do We Do?

Attorney E.J. Hong from Palo Alto, California provided a succinct answer to what we do as individual attorneys: "I'm an estate planning attorney, I do wills, trusts and probate law."

E.J. also provided this additional commentary as to what estate planning attorneys are all about. I read this in one of her email responses from one of the American Bar Association's email lists for attorneys. E.J. graciously agreed to give us permission to share what she wrote:

1.  Estate planning is a happy place.  It beats handling probate or conservatorship or leaving turmoil for your family.  It certainly beats having to fight out a guardianship proceeding because the parents did not have a Will.  It beats your family members having to guess at your medical decisions. It's a happy place because you are in control now. You're alive, you're healthy, you have assets, you have people you love and people who love you. 

2.  Another way to think about estate planning is asset protection. Your assets are you, your children, your business, your properties, all the stuff that you've worked hard for.  Asset protection is protection from probate, conservatorships, taxes, and turmoil.  The federal government may be your favorite charity, but maybe not.

3.  Estate planning is an act of love  - it protects you and your loved ones.  It's like having an insurance policy.  You may not need it right away, but when you do need it, your family will be very pleased that you cared enough to plan ahead.  You also might discover, as my clients have, that making an estate plan actually decreases your anxiety and leaves you with peace of mind. 

-- E. J. Hong

September Monthly Update

Check our August Update for information about our upcoming Law Day and Open House event on September 18 and our new office at the beautiful World Trade Center.

Need Legal Advice? You are welcome to contact Tredway, Lumsdaine & Doyle regarding your specific situation for legal representation in all matters including estate planning, trust administration, probate and related litigation. Email inquires always welcome -- email Jennifer Sawday or Monica Goel.

Original Content!!! This blog proudly features original content from the authors. We do not subscribe to a blog writing service like some other blogs. The posts here are from our own legal minds and practice with our clients. We write from our research and extensive experience in estate planning, probate and trust administration practice. If we use a source, it is always attributed.