Will Formalities – Those Picky Lawyers

Back again with more thoughts on Estate Planning after completing your divorce.  Previously, we discussed components necessary to make a valid Will.  In summary, you, as the person making the Will must have capacity and be competent to make a Will, with the intent to give upon your death, without outside influence, reduced to a writing, properly signed and witnessed.

Before we get into some of the substance of a standard Will, I thought it might be fun to hear some of the picky little requirements, that have had Will’s in court for hundreds of years as we perfect our rules to protect people in this gifting process.  Below I will spew some rules of law and for those who like fact checking, I will refer to the Probate Code by section number, commonly shortened to “PC §”.

A Will shall be in writing – PC§6110 (a) and by this law, California no longer accepts spoken, oral or nuncupative wills and has not done so since 1983.

The Will shall be signed by the Testator (the person giving under the will), in the Testator’s name by someone else, but in the presence of the Testator and at the Testator’s direction, or by a Conservator (court appointed caretaker) for the Testator – PC§6110 (b)(1)(2)(3).

A Will can be a valid holographic will, if the signature and material provisions are all in the handwriting of the Testator – PC§6111(a).

With these basic rules in hand, the courts have gone on to say, that a valid Will could be – typewritten, handwritten, a letter, a printed form, a printed form with typewritten or handwritten additions.  It may be one sided or two sided or multiple pages, even if not bound together.  The Will need not have been made all at one time.  The Will may be in pencil and/or ink, or different color ink, even at the same time.  A valid will may even be a carbon copy (for those of us who are old enough to remember “carbon paper”) and may even be marked as “duplicate” or “copy”.  A valid Will in California, may even be in a foreign language.  I share all of these weird little comments, only because at some time, some one, or many have fought over a Will being valid or not, because one of these odd facts came up.  For each of these odd facts, there are additional rules telling us how these are valid or not.

Another picky area for Wills, is witnessing the signature of the Testator.  Witnessing or Attestation is governed by PC§6110(c)(1) which states that the witnessing must be of the act of signing of the Will by the Testator, during the Testator’s life, of course it is tough to witness the signed by a dead person, by at least 2 persons, both present at the same time, so they can witness each other witnessing.  The witnesses may also both be present when the Testator claims that the Will was signed previously, so the Testator says, I signed this, and that is my signature.  The witnesses must also understand that they are witnesses of a Will and that they are signing the Will as witnesses.

A quick warning before we finish, a Will and the witnessing can be valid if a witness is an interest party under they will, that is, they stand to receive a benefit under the Will.  However this raises a presumption that the interested party procured their benefit under the will by some sort of duress or undue influence.  If that is the case, then it might be better to not be a witness if you are getting something under the will, or to have additional disinterested witnesses.  Just trying to avoid a family fight.

This was some odd bits in thinking about a basic Will.  Next blog will deal with a few other types of Will, including Holographic Wills and Statutory Wills. However, if you have any questions, feel free to respond below, or if you are interested in learning more about an Estate Plan, Wills, Trusts, Advanced Healthcare Directives, or Divorce, Custody, Visitation, Child Support, Spousal Support, Property Division, Modifications, Remarriage, or Pre-Nuptial Agreements, please contact me at http://www.fcbegun.com/, fbegun@gmail.com or at http://www.linkedin.com for Fred Begun.

Will Components

Back again with more thoughts on Estate Planning after completing your divorce.  Several weeks ago, before our discussions on the Prop 8 and DOMA rulings by the U.S. Supreme Court and the digression about Registered Domestic Partners, we started our discussion on  Simple Wills.  This week, I want to lay out the basic parts of a Will necessary to make it complete and valid.

In order for you to have a valid Will in California, you must be in compliance with all aspects of the Probate Codes in California.  While there may be certain exceptions and nuance, generally speaking the laws require that:

-       That you have Testamentary Capacity – meaning you are legally able to make a Will, such that you are at least 18 years of age, that you are mentally Competent to make a Will (which has extensive conditions and qualifications), 

-       That you have Testamentary Intent being the desire to give upon your death,  

-       That you are free from Outside Influence, 

-       That you reduce your intent to Writing, 

-       That you Sign your Will, and 

-    That your signing of the written Will is Witnessed by at least two qualified persons. 

Each of these items have many specific qualifications, that fill up reams of laws, codes and case books, as a result of every conceivable challenge by every aggrieved possible heir, family member, mistress and bastard child.  Life offers endless opportunities and scripts for your favorite Soap, or God Forbid, reality T.V.!

In addition to these structural formalities, like any story, there are other general notions for how a Will should simply make sense.  The Will should have certain opening clauses that identify you as the person making the will.  That you are of sound mind and that you are making it with your own free will.  You should also specifically invalidate or revoke any other Wills that you previously made.  You could identify all known family if any. 

The next segment of clauses in your will should identify your donative intent, that is, that you have stuff and you want your stuff to be handled in a certain way, and that you want it given to specific persons or entities that you chose.  In this segment, you should clearly state the entirety of your estate.  Everything that you have and where it goes.  Depending on what you have, you could/should make separate clauses for each type of property you have and how you want it directed.  People typically have a clause for real property, which is land or real estate, maybe even a separate clause for each specific property, especially if you are fortunate enough to have substantial accumulations.  Other specific clauses might be cash, stock, bonds and other financial holdings.  After that, you might have special clauses for personal property, or the things about the house.  Maybe this is simply disposing of clothing, but it might be furniture, art, antiques, family heirlooms and the likes.  Finally, there should be a Residuary clause, being the catch all clause for anything that does not fall under any other clause or might not be specifically listed elsewhere.  Frequently, this clause saves the clear intent for things acquired after the Will was drafted.

Another specific clause that should be included is the appointment and fiduciary clauses, which identifies who will control your estate and represent your interests after you die.  This is your ability to dictate who, individually, buy group, and even by sequence, who you want to control your final affairs and the disposition of your effects as dictated by your will.

After that, there should be some final clauses considered routine by your lawyer, wrapping up all the formalities and technicalities of your Will.  All of which lead up to the signing off of the complete and final document, being your “Last Will and Testament”.

  

In the blogs that follow, I will begin to address some of the other types of Wills and some of the weird stories. However, if you have any questions, feel free to respond below, or if you are interested in learning more about an Estate Plan, Wills, Trusts, Advanced Healthcare Directives, or Divorce, Custody, Visitation, Child Support, Spousal Support, Property Division, Modifications, Remarriage, or Pre-Nuptial Agreements, please contact me at http://www.fcbegun.com/, fbegun@gmail.com or at http://www.linkedin.com for Fred Begun.

Registered Domestic Partners and Estate Planning

On the heels of last weeks article about Prop 8 and DOMA, and still in consideration of a question I received about Estate Planning for committed individuals who do not want to marry, I thought it might be worthwhile to discuss another impact area under California law, even though it does not directly connect to recently divorced people, the Registered Domestic Partner. 

California passed the Domestic Partners Rights and Responsibilities Act of 2003, professionally referred to as, the DPRRA.  Under this act, effective January 1, 2005, two individuals had the right to file as Registered Domestic Partners.  As such, a properly created RDP, shall have the same rights, protections and benefits and shall be subject to the same responsibilities, obligations and duties under the law, as if they were married persons.  DPRRA defines RDPs as “two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring”.  DPRRA also stated that a “legal union of two persons of the same sex that was validly formed in another state or jurisdiction and that is substantially equivalent to a domestic partnership would be recognized as a valid domestic partnership in California”

In order to file as a RDP under the DPRRA form filings required the following:

-   Neither person is married to another or in a domestic partnership with someone else, which such other marriage or domestic partnership is not terminated (no bigamy)

-   The persons are not related by blood so as to have an invalid marriage in California

-      Both persons are at least 18 years of age

-      Either both persons are of the same sex or at least one person is over the age of 62

-      Both persons are capable of consenting to the RDP

While I am not a political guru, the intent seems to have been to allow all rights and responsibilities of marriage to same sex persons, and due to other issues of later life marriages, to allow for opposite sex seniors to enter into a marriage like relationship.  Both, without technically being called “married”.  The DPRRA might have been an attempted end run for same sex marriage, as well as a possible work around for DOMA by blurring the lines between “married persons” who have clearly established rights and benefits, both State and Federal, and registered domestic partnerships which were essentially marriage in all aspects but for the name.  Some say, what’s in a name?  That question seems to have been made moot in California by the recent Prop 8 and DOMA rulings bu the U.S. Supreme Court.  That said where are we now?

 

With Prop 8 overturned, same sex marriage is currently allowed in California.  If you are a same sex couple and have considered a formal committed relationship, why bother with an RDP when you can get married?  If you are a same sex couple that entered into a RDP, can you and should you “get married” and if so, do you have to terminate the RDP first?  I would suspect the answer is yes.  Does it matter?  There is no law on point, so we can only speculate, so seek counsel and be very careful if you are considering these options.  Really consult with your tax planner to get better financial guidance.

With DOMA overturned, it seems that all rights that were trying to be allowed by the DPRRA should be allowed to a RDP without much question.  Furthermore, as a same sex couple, either married under the various windows of opportunity in California or other states, or electing to now get married post Prop 8, it again seems that all rights were trying to be restricted by DOMA must be allowed.  I want to stress again, that there is no law on point.  I am offering my speculation that this is a probably valid interpretation.

Finally, what of the DPRRA?  I suppose it is still valid and viable as a mechanism for commitment.  I cannot think of a reason for a same sex couple to elect an RDP over a marriage, especially if tax laws, the IRS and the FTB fall in line.  However, I see an opening here for elderly opposite sex persons to enter into a legitimate and committed formal relationship, while not being married, that would enable them to enter into a consolidated Estate Plan.  In my blog called “Changes” on 6/19/13 - http://fbegun.blogspot.com/2013/06/changes.html, responding to Dennis a few weeks ago, I did not discuss the option of them seeking to enter into an RDP.  Provided Dennis and friend can qualify for an RDP, this could be a viable alternative for them.  Again, is there any benefit of marriage over RDP?  One area of particular focus would be on taxes and a step up in basis, which are critical issues for Estate Planning between spouses.  I am not sure, other than to say that with a marriage, there are no questions about any rights and responsibilities, whereas with an RDP and even now relative to the DOMA and Prop 8 decisions, there may be some Federal benefits or treatments subject to question.   

There may still be some questions out there about practical application and administrative or legal language semantics.  There will likely be more litigation, not only as to the legality and propriety of these current court actions, but also as to the application of all of these other rights as to all of these other relationship options.  While there have been huge steps toward equal treatment of individuals, there are still those who question judicial majority decisions, legislative majority intent and voter majority propositions.  However, as a student of the legal system and the Constitution, I believe that the strain between these positions perfectly reflects the balance of power anticipated by the Founding Fathers.

In the blogs that follow, I will get back on track and discuss simple wills and the components necessary to make a complete and valid will, followed by similar discussions on trusts.  However, if you have any questions, feel free to respond below, or if you are interested in learning more about an Estate Plan, Wills, Trusts, Advanced Healthcare Directives, or Divorce, Custody, Visitation, Child Support, Spousal Support, Property Division, Modifications, Remarriage, or Pre-Nuptial Agreements, please contact me at http://www.fcbegun.com/, fbegun@gmail.com or at http://www.linkedin.com for Fred Begun.