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.
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