Estate Planning Practice Blog

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.

Holographic Wills -- a Quickie Alternative.

Sometimes I hear from a frantic friend: I am leaving tomorrow to go on a trip. What happens if I die?

Kind of leaves no time for estate planning, eh?

Well, there is an option recognized in California and about 25 other states. It is called a Holographic Will.

The requirements for a valid Will in California is rather straightforward, but can be mind-numbing to a non-attorney.

There are two different types of Wills:
1.  A Witnessed Will
2. Holographic Will

A Witnessed Will is typed up, signed by the testator and also signed by two witnesses.

A Holographic Will is a Will that is either prepared entirely in your handwriting or with material portions in your handwriting, signed and dated by the testator.

(The testator would be you -- the person creating the Will.)

So, it is the night before Christmas. Wait, I'm off by exactly 300 days.  But it is the night before your trip and you worry about life and death matters literally.

Please whip out a pen and a piece of paper. Lined paper would be nice so we can read your handwriting horizontally.

Write out in long hand who is getting your possessions, name who should serve as guardian for your children and who should manage your children's money until they turn of age.

For example, write the words: this is my last Will... I hereby revoke any and all Wills made by me... I am not married... I have two children... I give my entire estate to be divided equally to my daughter Missy and my son Biffy... I name my close friend Barbara to be  guardian of my children to include their person and estate... I want Barbara to be the guardian of their estate until they reach the age of 21... oh, and I also give my father's watch to my co-worker Evan because I think he is cute.

Sound silly? No, not really. If this Will were done in your penmanship, signed and dated by you -- the Courts would likely consider it a valid Holographic Will. And, Evan would likely get that watch if it were easily identifiable. You might want to be more specific about that watch -- it is a Timex or a Patek Philippe -- so that there's no question about which watch you are referring to.

Then when you get back from your trip rested, tanned and wealthy from winning the jackpot, call your attorney for proper estate planning. Of course, your attorney will revoke your Holographic Will after you execute a new Witnessed Will and corresponding Trusts (remember, you won the jackpot and are thus newly wealthy).

If you are serious about creating a Holographic Will, please google the requirements for your state or check the nolo.com website on Wills & Estate Planning for more information.

Analysis on Mother Re-Writing Daughter's Will & Omitting Her Son-in-Law

A very interesting post from Stan Rule who practices law in British Columbia, Canada...

Last month, he blogged about a recent case in the Great State of Texas where a lawyer drafted a new Will for a daughter who already had a Will. The catch was the new Will was drafted on behest of the mother and gave her daughter's assets to herself (the mother) and not her husband as was in the daughter's original Will.

How to Nominate a Guardian for Your Children

Leanna Hamill, Esq. has an excellent blog post on this very topic. Read it here.  She practices estate planning and elder law in Massachusetts. Though it's a far cry from California, her checklist is a good approach when considering who should be nominated guardian for your minor kids.

Naming Guardians for Your Babies

Did you know that a Will is the only legal document where you can name a guardian for your minor children? You can nominate an individual or a couple to be a guardian if the worst came to bear. 

You can also express your preference for which half of the couple should be primary guardian. Say your sister is married to a man you do not care for -- you can nominate this couple so long as they are married, but if they are not married then just your sister.

Every parent knows in their own mind who would be the best person or family to care for their children if they were suddenly unable to do so. Your wishes as a parents should be put down in writing so everyone else also knows what your wishes are. This avoids the family fight over who will care for your babies.

If you are not married to your kid's natural parent and the other natural parent does not have joint custody of your child -- you may want to nominate other individual to be guardian. The best way you can do this is to write a Letter of Intent Explaining Your Choice for Guardian to include with your Will. In that letter, you calmly state facts and reasons why the child's natural parent is not best suited to be guardian and why the other individual or couple would be.

Let's say you have a teenage daughter who is going to a good high school nearby. Your daughter's mother lives out of state. As her father, your wish is that your daughter finish high school at this school because it is a good school and to maintain continunity in her life. So as her father, you decide to nominate your close friend to be this child's guardian if one is needed before your daughter turns 18.

In your letter, you can explain that the natural parent lives out of state, that your daughter's education is important to you and that this close friend you are nominating already functions as a mother figure to your child. This may be enough for a court to award guardianship to your close friend especially if the mother does not contest the proceedings or allows your close friend to assume care of your child.

There is so much at stake here. Naming a guardian for your babies in case something happens to you is doing the right thing by your children.