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.

Great Example from Mass. About Don't Do It Yourself Wills

A recent case ruling from Massachusetts shows why you should not attempt to do your own estate planning including Wills and Trusts.

The man who died bequeathed 1/5 of his home to 5 people -- one being his wife and the other 4 being his kids. Did he intend for a life estate for his wife or do all 5 have a present possessory interest?

If this sounds confusing, read the opinion here and then consult with your estate planning attorney as soon as possible to get your affairs in order properly.

Heir Advances and Heir Search Firms.

There are companies out there that will advance money to heirs (folks about to receive money from an estate) before the estate is ready to close and the funds distributed.

Google "advancing money to heirs" to see a slew of companies offering this service. Generally it is not a good thing -- they charge money to advance you money. And most inheritances are not expected as no one really knows when someone will die and since when did it become an emergency to get that money that you are expecting from your great Aunt's estate?

But here is a funny joke:

What do these firms call it when the potential client does not engage them? A bad heir day.

And there are also firms out there that will help attorneys and others locate missing heirs. Google "missing heir" or "heir locator" to get an idea.

And the bad jokes for these guys, too:  If they don't find the heir, an heir not apparent or if they find him but then lose track of him, heir today, gone tomorrow.

Naming Guardians for Minor Children.

Did you know that a Will is the only document where you can nominate guardians for minor children?

Did you also know that Anna Nicole Smith's Will failed to nominate guardians for all of her minor children and that she only nominated a guardian for her son Daniel? By only nominating a guardian for her son Daniel, she effectively excluded nominating guardians for any after-born minor children.

The lesson here? Be sure to have an up-to-date Will that names guardians for all of your minor children.

The clause should read, "if a guardian of the person, estate, or person and estate is necessary for any minor child of mine, I nominate [Jane Smith], my sister, to serve as that guardian."  A broader clause like this one effectively nominates Jane Smith to serve as guardian for all of your minor children whether born at the time you executed the Will.

Sure, there are other clauses that could make a Will not effective for after-born children, but don't restrict the guardianship clause at the same time.

Pour-Over Will Provision.

A pour-over Will is a companion or a back-up to a Living Trust.  If you have property outside of your Living Trust when you die and it should be in your Living Trust, the pour-over Will will transfer this property into your Living Trust.

If a pour-over Will must be used, a probate estate must be opened so that the title of the assets can transfer into the Living Trust. A pour-over Will cannot be used without a probate proceeding.

A pour-over Will will be used if the property outside of your trust exceeds $100,000 in value in the aggregate. Say you have a small credit union savings account worth $5,000 -- a small estate affidavit procedure can be used to transfer this account in lieu of probate. But if this savings account along with other assets exceed $100,000, probate must be opened to transfer title of all of these assets.

How to tell if your Will is a pour-over, read the sample provision below where the Will gifts the entire estate to the Living Trust.  [Note that this Will does not give the property outright to whoever is the trustee of the trust. It gives it to the trustee of the trust to distribute in accordance with the trust provisions.]

2.1. Gift of Entire Estate

    I give all of my property to the trustee of the JOHN SMITH REVOCABLE TRUST dated July 1, 2006, created under the declaration of trust executed on the same date as, but immediately before, the execution of this will, by JOHN SMITH as settlor and trustee. The trustee of that trust shall add the property disposed of under this will to the trust principal and hold, administer, and distribute the property in accordance with the provisions of that declaration of trust, including any amendments of that declaration of trust that have been made before or after execution of this will.

Anna Nicole's Will Should Have Been Updated.

The headlines in the news for the past week focused on the untimely death of Anna Nicole Smith. One major topic of discussion was her Last Will and Testament and how it disinherited after born children.

Without picking apart what is wrong with the Will from a drafting standpoint ... she violated one of the tenets of estate planning -- make sure your estate plan is up-to-date.  Any changes in your family structure as it relates to your estate plan should be incorporated as soon as possible. This includes death, marriage, birth or divorce in your family.

Here, Anna Nicole's son died and her daughter was born -- these are two changes that should have been reflected in a codicil or a new Will. Of course, it may take anyone more than a few months or five months to see an attorney to update a Will after the death of a loved one, but she time to make a change in her Will to include her newborn child before giving birth.

It is also likely that if Anna Nicole had significant assets (no, I am not talking about those) then she may have had a trust. Trusts are private instruments not subject to public scrutiny unless it becomes part of a litigation matter.

If she had a trust, her Will could have been a "pour-over" Will. A pour-over Will is drafted so that any assets not already in her trust will be devised to her trust via a probate proceeding. Anna Nicole's Will is not a pour-over Will.

For a pdf version of Anna Nicole Smith's Will, click here.

Updated 2-27-2007, a pdf version of her Will is now being circulated with the last page indicating witnesses' signatures. Apparently one witness is Howard Stern's former colleague and another witness was an actress that appeared in Wasabi Tuna with Anna Nicole.

Reading Wills?

Remember those old movies?

You know, where they read a Will outloud after the demise of a very rich uncle with the greedy heirs sitting with a bated breath to learn of their newly acquired fortune.

This is rarely, if ever, done in real life according to an informal survey of estate planning attorneys across the country from an email list I belong to.

Typically when someone passes away, their original Will is lodged with the court. Copies of the Will may be sent to the heirs or beneficiaries depending on the attorney handling the estate. If the Will has been lodged with the court, you can also inspect the Will at the court.

If you ever have questions about someone's Will, please seek the advice of counsel. You can start with the attorney who prepared the Will if you know who he or she is. If the question you have does not pertain to a matter involving attorney-client privilege, the attorney may answer. If not, see the advice of your own lawyer if you have questions about a Will or wish to contest it.

Back to the movies though ... in in all seriousness, folks, reading a Will in an attorney's office would be two things: 1) boring and 2) expensive use of an attorney's time.

Imagine reading this paragraph outloud... it came from a Will that I prepared this morning.

"4.11. Payments to Legally Incapacitated Persons. If at any time any beneficiary under this will is a minor or it appears to the executor that any beneficiary is incapacitated, incompetent, or for any other reason not able to receive payments or make intelligent or responsible use of the payments, then the executor, in lieu of making direct payments to the beneficiary, may make payments to the beneficiary's conservator or guardian; to the beneficiary's custodian under the Uniform Gifts to Minors Act or Uniform Transfers to Minors Act of any state; to the beneficiary's custodian under the California Uniform Transfers to Minors Act until the beneficiary reaches the age of twenty-five (25); to one or more suitable persons, as the executor deems proper, such as a relative or a person residing with the beneficiary, to be used for the benefit of the beneficiary; to any other person, firm, or agency for services rendered or to be rendered for the beneficiary's assistance or benefit; or to accounts in the beneficiary's name with financial institutions. If there is no custodian then-serving or nominated to serve by me for a beneficiary, the personal representative or executor, as the case may be, shall designate the custodian. The receipt of payments by any of the foregoing shall constitute a sufficient acquittance of the executor for all purposes."

Choose Your Kids' Guardians Now.

All parents should have Wills drafted to protect their youngest family members. A Will is the only document where you can nominate guardians for your minor children in the event both parents pass away at the same time.

If you are not married to your child's other parent, the surviving natural parent will either assume the sole parenting role or have priority as guardian. You can always nominate someone else other than your child's other natural parent to be his or her guardian if you have a good reason. For example, if the other parent is in jail, is an absentee parent or has other issues that would not make him or her a good choice to step in your shoes to continue parenting your child. In these cases, you can nominate who you think would be better suited to be your child's guardian and document your choice with a letter of intent. The court may not approve your choice, but your wishes will be known. Also, there is a possibility that an absentee natural parent may decide that he or she would not want to step into your shoes and would prefer to allow the child to be placed with your nomination of guardianship.

But if the unthinkable happens, and both parents pass away at the same time, guardians and alternate guardians need to be named in your Wills. There is no judge that wants to have to make a decision who should be the guardian in a situation like this. And this kind of situation can be exacerbated when there's a family fight over who should get the kids.

This happened to friends of mine recently. They had 3 young boys. My friends, as the boys' Mom and Dad, were both killed on a tragic car accident on their way to Arizona. Both sets of grandparents were older and in no position to care for the 3 young boys. Heart wrenching decisions had to be made to determine who will care for the boys immediately, can they be together and who will care for the boys permanently. When Mom and Dad both die, the kids still need someplace to spend the night and someone needs to frantically make the decisions.

Ask your potential guardian nomination if they will serve as guardians if needed. Make sure you have sufficient life insurance so that your guardians have enough funds to care for your children. Lastly, prepare your Wills and nominate guardians for your kids.

If you also own real estate in California, you should talk to your attorney about setting up a Living Trust as well. A Will is a must for nominating guardians, but it is only one document of many that make up a complete estate plan.

California Statutory Will.

The State Bar of California has a "fill-in-the-blank" Will form if you would like to create your own Will today.

You can complete the form following the instructions, sign it in the presence of two witnesses and have your witnesses sign the Will where indicated. The State Bar also has a FAQ for the "fill-in-the-blank" Will form.

The most important thing to note is that you cannot cross out, add or change any portion of this Will to suit your wishes if you do not like some of the language. All you can do is fill in the spaces provided if you want the Will be to valid. Think of it like Mad Libs. But instead of putting down funny or dirty words, put down your wishes.

Having a Will is better than not having a Will.

Fractions in Wills.

For the most part, your Will or Living Trust can have any sort of distribution method you prefer for your beneficiaries. Your estate can be divided into equal shares, unequal shares, percentages, fractions, dollar amounts and by item.

The most common approach is to divide your estate equally among your children. Regardless of your approach, the main thing to be concerned with is that it is clear what your intention is after you are no longer around to explain what you meant.

Stan Rule, an excellent Trusts and Estates attorney in British Columbia, has a neat blog worth reading. He wrote about such an odd case he came across about fractions, sons and daughters. Read his post to see what I mean.