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/,
fbegun@gmail.com or at http://www.linkedin.com for Fred Begun.
No comments:
Post a Comment