Estate Planning Practice Blog

Handwritten Wills Are Okay.

A handwritten Will is also called a Holographic Will.  It must be entirely in your own handwriting if you are not using a fill-in-the-blank form available at stationary or office supply stores. These fill-in-the-blank Wills generally comport with California law for a valid handwritten Will.

The basic requirements for a Holographic Will is that:

1. It must be completely in your own handwriting.
2. You must date and sign the Will.
3. Your handwriting has to be legible.
4. And the Will must clearly state what you are leaving and to whom.

A handwritten Will does not have to be notarized or witnessed. However, any typed material in a handwritten Will may invalidate the Will.  In contrast, a typed Will must be signed by two witnesses.

After you pass away, the court will require the personal representative of the estate to "prove" the Will.  This means prove it was your handwriting and that you had testamentary capacity at the time.  See California Probate Code Section 6111.

Remember whether there is or is not a Will, probate is required if the estate is more than $100,000 in assets or $20,000 in real property. A Living Trust or other Trust will usually avoid probate when properly prepared and funded.

In my opinion, a handwritten Will is better than no Will or Trust. Also, if you have minor children, please nominate a guardian in your Will.  As always, seek the advice of an estate planning attorney if you have any questions or concerns.

What Price For Wills?

Every now and then I receive a telephone call from a client who wants a Will or change their existing Will.  Nada about estate planning. Just Wills.

The person met with me a few days later. It was clear. She only really needed a codicil to her Will. She was making such a minor change in her wishes.

She did not own property and did not have any kids.

Did she need an Advance Health Care Directive? Sure. Did she need a Durable Power of Attorney? That would be a good idea. But she really just wanted to update her Will and could not afford much else. I understood. I was more than happy to update her Will.

The interesting thing is that she made a few phone calls to other estate planning attorneys in the area. She told me that one office stated that their price would be $2100.00. That's crazy! This lady was not inquiring about estate planning. It might have been a good thing for her, but she really didn't need a Trust and she was not able to pay for other documents. She just wanted to update her Will. My fee turned out to be $2000.00 less than she was quoted over the phone. For someone who wanted to bequeath a favorite painting to her favorite relative -- it was all she needed.

Sometimes I just want to say to the other attorneys, what are you thinking and just change the damn Will. Who cares about up-selling all the time?

So Loving Big Love on HBO -- "Where There's a Will"

Ho, ho, ho, major blog fodder again for just watching one of my favorite shows on tv. I love Big Love on HBO. A recurring theme on tonight's episode was about the Wills. In fact, the episode was titled "Where There's a Will." Love it!

Part of the plot in tonight's episode involved the three sisterwives preparing Wills to determine who would be guardians for their respective children.  It went like this: if something were to happen to a wife and Bill (their husband) then each wife made nominations in their Wills for one of their sisterwives to become guardian. The sisterwives kept changing their minds, but in the end they stuck with nominating their sisterwives in order of their marriage to Bill.

Big Love was right on about the importance of Wills in every family.

In California, a Will is the only document where you can nominate a guardian for your minor children in the event you are unable to care for them or pass away.

Wills are easy to draft. You can see an attorney to have one completed as part of your estate plan or do some homework on Google to find out your state's requirements for a holographic Will.

Do I Need to Change My Will if I Divorce?

Yes and no.

Unless your Will says otherwise -- that you've provided for a gift for your spouse regardless of your marital status -- your final divorce automatically revokes any provisions naming your former spouse as a beneficiary or appointment as executor, trustee or conservator on your behalf. See California Probate Code Section 6122.

You do need to do actively change the beneficiary designations on your life insurance policies and retirement accounts to name someone other than your former spouse.

Remember, your wishes are the most important thing. If you wish to leave a bequest to your former spouse or name your former spouse as a beneficiary on a life insurance policy -- you can. Just be sure to consult with an attorney to ensure that your wishes are valid despite your divorce.

You might ask... why would I want to name that scumbag to get my money when I die?

Well, for starters, your former spouse may not be a scumbag.

Second, he or she could be the father or mother of your children. If your children are still minors, you may wish that your former spouse receive the proceeds of a life insurance policy so that he or she can continue to raise your children as you hoped.

Third, you could have an entirely different reason.  Keep us wondering...

Does a Will Cover Every Asset?

A Will does not control distribution of all of your assets.

First, any assets placed in a Trust will be controlled by that Trust.

Second, a Will usually does not control the distribution of life insurance proceeds, retirement plan assets, jointly owned accounts or other assets that have a valid transfer on death (TOD) or payable on death (TOD) provisions.

So, be sure to have at least a Will, consider if you need a Trust and update your beneficiary designations for your life insurance policies, retirement accounts and all other financial accounts to reflect your wishes.

How About Updating Your Will?

I love this post from Leanna Hamill, who practices law in the same areas I do on the East Coast... she's from Massachusetts. Leanna writes about a client who had an existing Will from 1962!

The laws are constantly changing with respect to Wills and Trusts.  Be sure to update your Will and other documents to reflect your current family dynamics and laws.

Personally, as an attorney, I do not like to do work that does not need to be done. I have reviewed existing Wills and Trusts and told my clients that they are actually okay as it comports with their wishes and the laws. But, a Will from 1962 needs to be updated no matter what.

See your attorney who drafted the documents for you. If you prefer, you can also see a new attorney. It is up to you.

FAQ: Who Will Raise My Kids if I Die?

A question every parent contemplates in the wee hours of the night, but hates to face in broad daylight. No wonder, it is a heart-wrenching worry. But you can stop worrying and here's how...

If you die leaving minor children and the other parent survives you, the other parent ordinarily will raise and support them.

If the other parent is not living, your minor children will require a guardian.

A guardian is an individual who is appointed by the  court to take custody of the minor child and to have the possession, care and management of their estate.

The guardian is required by law to provide for the minor’s health, education, maintenance and support.

You may appoint a guardian for your minor children in your Will. If you do not have a Will, or do not appoint a guardian, then the court will make the selection of a guardian.  Each parent should have a Will nominating the same guardian. If both parents pass away at the same time, there should not be conflicting nominations for guardian in their respective Wills. It can happen especially if the parents are not married or together in another sense.

It is easy to assume responsibility for this important decision as a part of your estate planning.

You may wish to look first to your contemporaries in your family, such as brothers, sisters, or cousins. You may also wish to consider friends with children in the same age range as your children. You should consult with the proposed guardian to ensure that the person is agreeable to assuming this significant responsibility.

If you are designating a husband and wife to serve as co-guardians, you should consider whether you want to specify that both of them are to serve only if they are still married to each other at the time of the appointment.

If both parents die, your minor children may be left with substantial property interests that need management and protection. You may wish to consider whether the same person is appropriate to care for your children and to manage their property interests.

In loving families, it is often the same person that is appointed as guardian and the trustee of the trust for the minor's benefit.  Your attorney will welcome this discussion if you are unsure about who should appointed as guardian and/or trustee.

It is usually a good idea that if  upon the death of you and your spouse, a trust be established for your minor children. The trustee should be encouraged to make generous distributions to assist the guardian, including the provision of funds to pay for any necessary expansion of the guardian’s home.

I think it is a good idea to tell the proposed guardians that they are named in your Will, Living Trust or other estate planning documents.

For more  on guardians and estate planning, please see my post on January 25 and another post on January 30.

FAQ: What Property Doesn't Need a Will? (Beneficiary Designations Deluxe.)

Certain forms of accounts and insurance policies are based on contracts and will not pass to another person after your death via a Will. These types of assets pass according to beneficiary designations listed with the institution as part of your contract.

Beneficiary designations are also called TOD or POD... meaning Transfer on Death or Payable on Death provisions. Almost all financial institutions have this feature for their products including checking, savings and brokerage accounts. However, many internet only banks are not offering this feature. If you have large sums of money in an internet only bank, be sure to make it a joint tenant account or transfer your money to a brick and mortar bank.

In addition, property held in certain joint tenancies with a right of survivorship (e.g., joint bank or brokerage accounts, real estate owned as joint tenants with a right of survivorship) pass directly to the surviving joint owner.

So how does it work?

For example, proceeds from life insurance policies pass to beneficiaries named in the policies, and retirement accounts and annuities pass directly to the beneficiaries named in those contracts.

The company is notified of your death by a beneficiary or other loved one. The company will send out letters to all beneficiaries listed with instructions and documents necessary to receive their share of your assets.

Often times the company will offer a complimentary product funded by the asset. In case of a life insurance policy payout, the insurance company may open a money market checking account with the proceeds of the death benefit and send the beneficiary a book of checks. The beneficiary can then write checks to transfer the money as appropriate.

For joint tenancy in real estate...

You will want to notify the county recorder of the death of joint tenant by recording an Affidavit of Death of Joint Tenant.

Other joint tenancy in banking...

Notify the financial institution and follow their policies for reporting a death of a joint tenant.

Be sure to review all of your beneficiary designations and joint ownership agreements to be sure that they reflect your wishes.

FAQ: What Happens if I Die Without a Will?

Generally speaking if you pass away without a Will or any other estate planning in place... the laws of the state in which you reside in will create an estate plan for you.

In fact, your state's laws will determine both the persons to whom your property will pass and the division of your property among those persons.

The distributions provided by law are inflexible, and do not take into account any particular or special circumstances that may exist. Or any specific wishes that you may have had, but did not put in a signed writing like a Will. If you utter something before you pass away or trust a certain individual to handle your affairs in a certain manner, there is no way to ensure this is enforced without a Will or a estate plan.

In California...

In addition, any amounts to be distributed to your children may require legal guardianship proceedings if they are minors at the time of your death. If you die without a Will, and are survived by your spouse, the law states that your probate assets will pass to your spouse.

However, if any of your children are from a prior marriage, then California law states that two-thirds of your probate assets will pass to your children and one-third will pass to your surviving spouse.

For the most part, a probate assets is any asset which is owned in your name alone at the time of your death and cannot pass to a loved one upon your death. If you have a retirement account that lists beneficiaries upon your death, this retirement account would not be a probate asset if those beneficiaries are living at the time of your death.

If you die without a Will, and do not have a surviving spouse, the law states that your probate assets will pass to your children. If they are minors, a guardianship or conservatorship proceeding will be necessary to manage the property until the children reach eighteen years of age.

If you are not survived by a spouse or children, your probate assets will pass to your parents if they are living at the time of your death.

If your parents do not survive you, your probate assets will pass to your brothers and sisters and so on it goes.

Read more about California's laws of intestate succession here.

Simple Wills? Do They Have a Purpose?

There was a discussion on one of my email groups about preparing simple Wills when the client really needs a more comprehensive estate plan.

A simple Will does have its place.

First, a Will is the only document where you can name a guardian for your minor children.

Second, if you do not own real property in California and your estate consists of assets that can transfer upon your death to your loved ones via a beneficiary or payable on death designation, chances are you only need a simple Will.

A simple Will means having just a Will as the be all and end all of your estate planning.

The scenario could be this... a client has over $2 million dollars in assets. Some in cash, some in retirement and a home or two. This person needs more than a Will. In fact, if this person had only a Will, his estate will go into probate and be very costly in terms of time and emotions for his loved ones. Estate taxes would also come into play. Estate planning could be done to avoid probate, minimize or eliminate estate taxes and make it much easier for his loved ones upon his demise.

Further, even if you do have a modest estate, it can easily become a much larger estate during your lifetime due to reasons not of your control. Such reasons include inheriting money from someone, appreciation of your assets or even changes in the law. Remember that the laws involving estate taxes are up to Congress and are not static.

Moreover, if you prepare a simple Will, please consider whether you also need a Durable Power of Attorney and Advance Health Care Directive as part of your overall estate plan.