Sunday, August 4, 2013
Certain Types of Wills
Time to start getting into some of the meat and taters of Estate Planning. The single most common item in an Estate Plan is your Will. There are several types of Wills and various treatments.
As we discussed last blog, there used to be Oral or Spoken Wills, but in California, that is no longer viable. While Oral Wills are the oldest format, the next oldest and by far most common is the Holographic Will, no, not the 3-D video, which would be cool, but simply a hand written Will. Prior to 1983, the law used to be that a holographic Will is simply a written Will, not witnessed, but written entirely in the hand of the Testator, the person making the Will, also signed and dated by the Testator. This has evolved over time, due to various cases, like the 1982 case, “Estate of Black”, that allowed use of writing on a printed form, and was then made into new laws regulating these modern details.
PC §6111(a) provides for a Holographic Will to be valid if, “the signature and the material provisions are in the handwriting of the Testator.” As with most laws, there are specific exceptions and concerns stated in the Probate Code, but we will not go into that here. However, be advised, if you want to have a Holographic Will or a loved one has passed leaving a Holographic Will, ALWAYS consult with an attorney to determine validity and other legal concerns. Please remember, while paralegals and notaries are valued service provides, some of whom help in the preparation or sign offs on printed or form Wills, they are neither licensed nor qualified to give legal advice.
A few oddities about Holographic Wills. While we have established that they can be printed forms, but must be signed and with handwritten specifics, when signing, the Testator need not use a legal or formal name. Nicknames or family affectionate names have been accepted by the courts. The signature doesn’t have to be at the end of the document. Seems weird, in that we see a signature at the end as being the wrap up of the document, but the point here is that the signature is evidence of intent, in this case that this document is the Will and the signature is evidence that the Testator adopts this document as the Will.
Another change as of 1983 is that the Holographic Will no longer has to be dated. Be Warned, while this may not be required, you really should date and sign. And here’s why. First, a fundamental question is whether the Testator had the mental capacity to make a will. If there has been health or aging issues, know that a Will was made years ago when someone was healthy, means that it is more likely to be valid. Second, what about someone who changes his or her mind over the years and has several Wills. The last in time will be presumed to be the most recent statement of what the Testator wanted done. Most Wills will state that all other Wills are revoked and replaced by this Will. We need to know which came first and which came last.
The last type of Will that I want to tell you about is the California Statutory Will. This is a printed form Will provided by the State Bar of California for anyone to use, and can be done without an attorney! As per PC §6220, any individual over 18, of sound mind, can use the Statutory Will. You get the forms, fill them out and sign. You must have witnesses, who actually see you sign the Will (PC §6221). There are various other considerations of the Statutory Will, but it is handled like any other Will and given the same respect and scrutiny. The one thing to be aware of here is that the Statutory Will accomplishes the basic goal of a Will, that being to not die with a Will and to direct the disposition of your stuff to your people. It is not useful if you have a slightly more complex story or if you are trying to do any kind of tax planning in your Estate Plan. No to be dismissive, but it is better than nothing.
Let’s be honest. Not everyone has a Will, and when they die, their stuff is dealt with by rules of law and the Probate Code. If you don’t have a Will, you are deemed “Intestate” or without a Testament, you know, the “Last Will and Testament” stuff we hear on TV and in movies. In many instances, this will be fine. If you do not have much by way of money or assets or if you don’t have much by way of family. The law of Intestate Succession will give your stuff, to your family, and do so equally, by degree of connection. For example, your spouse, then your children, then your parents, then your siblings, and so on. But if you want at least some control, then you should consider a Will. The last point I want to make here is that if you do not have a Will, and you have some stuff, your stuff will have to go through Probate. This means courts and court costs, attorneys and their fees. In addition to this money, matters could take time to process in the court system. Having a Will does not guarantee that you don’t have these fees and costs and time drains, but it can help remove the likelihood and can save some time and money.
These last few Blogs were about some basic Will aspects, trying to catch your interest and get you thinking about Estate Planning. Hopefully you will review your Estate Plan with you're a Team, or at least begin to seek out an Estate Planning Attorney to start this process. Stay tuned for future blogs. 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/, email@example.com or at http://www.linkedin.com for Fred Begun.