International Wills

I have been practicing law since 1994. I have been extremely focused on the areas of estate and probate law during that time.  Through those years I have a number of clients who have property in other countries. Usually we agree that they will talk with an attorney in the other country.  As you might have guessed many countries have far simpler laws for passing assets, after death, than we do here in California. Some not as easy.  The one, almost uniform, constant I have found is that most countries do not honor our living trusts. That is, the concept of a revocable living trust generally is not one that carries over. There are some exceptions but even then they might prefer, or require, the use of THEIR countries trust and not a US trust.

The use of a home country will is fine. As long as the two wills clearly do not revoke the other one there should be no problem. Yes, watch out for probate but beyond that having a will in the other country should be fine. Just try to meld it with your US will so they work together.

I was recently talking to a colleague about a high net worth client with property in another country.  One thought they had was to use an international will. I must admit my use of international wills is limited but in my research I have to agree this is a great item to consider when you own property in another country. In fact, qualifying your “California” will as an “international” will really is not that difficult.

The the International Institute for the Unification of Private Law (UNIDROIT) held the Convention Providing a Uniform Law on the Form of an International Will in Washington DC in 1973. They developed the guidelines for an international will. The entire text is below. However, in summary the requirements are:

- the will is for one person (not a dual will);

- the will shall be in writing and in any language;

- the will must be signed in front of TWO witnesses;

- the will must be signed in front of an authorized person (attorney);

- all signatures are at the end of the will;

- the testator signs every page;

- every page is numbered.

Again, the full act is below. If you want to talk about an international will for you please contact us.  -John

 

CONVENTION PROVIDING A UNIFORM LAW ON THE FORM OF AN INTERNATIONAL WILL (WASHINGTON, D.C., 1973)

The States signatory to the present Convention,

 DESIRING to provide to a greater extent for the respecting of last wills by establishing an additional form of will hereinafter to be called an “international will” which, if employed, would dispense to some extent with the search for the applicable law;

HAVE RESOLVED to conclude a Convention for this purpose and have agreed upon the following provisions:

Article I

1. Each Contracting Party undertakes that not later than six months after the date of entry into force of this Convention in respect of that Party it shall introduce into its law the rules regarding an international will set out in the Annex to this Convention.

2. Each Contracting Party may introduce the provisions of the Annex into its law either by reproducing the actual text, or by translating it into its official language or languages.

3. Each Contracting Party may introduce into its law such further provisions as are necessary to give the provisions of the Annex full effect in its territory.

4. Each Contracting Party shall submit to the Depositary Government the text of the rules introduced into its national law in order to implement the provisions of this Convention.

Article II

1. Each Contracting Party shall implement the provisions of the Annex in its law, within the period provided for in the preceding article, by designating the persons who, in its territory, shall be authorized to act in connection with international wills. It may also designate as a person authorized to act with regard to its nationals its diplomatic or consular agents abroad insofar as the local law does not prohibit it.

2. The Party shall notify such designation, as well as any modifications thereof, to the Depositary Government.

Article III

The capacity of the authorized person to act in connection with an international will, if conferred in accordance with the law of a Contracting Party, shall be recognized in the territory of the other Contracting Parties.

Article IV

The effectiveness of the certificate provided for in Article 10 of the Annex shall be recognized in the territories of all Contracting Parties.

Article V

1. The conditions requisite to acting as a witness of an international will shall be governed by the law under which the authorized person was designated. The same rule shall apply as regards an interpreter who is called upon to act.

2. Nonetheless no one shall be disqualified to act as a witness of an international will solely because he is an alien.

Article VI

1. The signature of the testator, of the authorized person, and of the witnesses to an internatíonal will, whether on the will or on the certificate, shall be exempt from any legalization or like formality.

2. Nonetheless, the competent authorities of any Contracting Party may, if necessary, satisfy themselves as to the authenticity of the signature of the authorized person.

Article VII

The safekeeping of an international will shall be governed by the law under which the authorized person was designated.

Article VIII

No reservation shall be admitted to this Convention or to its Annex.

Article IX

1. The present Convention shall be open for signature at Washington from October 26, 1973, until December 31, 1974.

2. The Convention shall be subject to ratification.

3. Instruments of ratification shall be deposited with the Government of the United States of America, which shall be the Depositary Government.

Article X

1. The Convention shall be open indefinitely for accession.

2. Instruments of accession shall be deposited with the Depositary Government.

Article XI

1. The present Convention shall enter into force six months after the date of deposit of the fifth instrument of ratification or accession with the Depositary Government.

2. In the case of each State which ratifies this Convention or accedes to it after the fifth instrument of ratification or accession has been deposited, this Convention shall enter into force six months after the deposit of its own instrument of ratification or accession.

Article XII

1. Any Contracting Party may denounce this Convention by written notification to the Depositary Government.

2. Such denunciation shall take effect twelve months from the date on which the Depositary Government has reccived the notification, but such denunciation shall not affect the validity of any will made during the period that the Convention was in effect for the denouncing State.

Article XIII

1. Any State may, when it deposits its instrument of ratification or accession or at any time thereafter, declare, by a notice addressed to the Depositary Government, that this Convention shall apply to all or part of the territories for the international relations of which it is responsible.

2. Such declaration shall have effect six months after the date on which the Depositary Government shall have received notice thereof or, if at the end of such period the Convention has not yet come into force, from the date of its entry into force.

3. Each Contracting Party which has made a declaration in accordance with paragraph 1 of this Article may, in accordance with Article XII, denounce this Convention in relation to all or part of the territories concerned.

Article XIV

1. If a State has two or more territorial units in which different systems of law apply in relation to matters respecting the form of wills, it may at the time of signature, ratification, or accession, declare that this Convention shall extend to all its territorial units or only to one or more of them, and may modify its declaration by submitting another declaration at any time.

2. These declarations shall be notified to the Depositary Government and shall state expressly the territorial units to which the Convention applies.

Article XV

If a Contracting Party has two or more territorial units in which different systems of law apply in relation to matters respecting the form of wills, any reference to the internal law of the place where the will is made or to the law under which the authorized person has been appointed to act in connection with international wills shall be construed in accordance with the constitutional system of the Party concerned.

Article XVI

1. The original of the present Convention, in the English, French, Russian and Spanish languages, each version being equally authentic, shall be deposited with the Government of the United States of America, which shall transmit certified copies thereof to each of the signatory and acceding States and to the International Institute for the Unification of Private Law.

2. The Depositary Government shall give notice to the signatory and acceding States, and to the International Institute for the Unification of Private Law, of:

(a) any signature;

(b) the deposit of any instrument of ratification or accession;

(c) any date on which this Convention enters into force in accordance with Article XI;

(d) any communication received in accordance with Article I, paragraph 4;

(e) any notice received in accordance with Article II, paragraph 2;

(f) any declaration received in accordance with Article XIII, paragraph 2, and the date on which such declaration takes effect;

(g) any denunciation received in accordance with Article XII, paragraph 1, or Article XIII, paragraph 3, and the date on which the denunciation takes effect;

(h) any declaration received in accordance with Article XIV, paragraph 2, and the date on which the declaration takes effect.

IN WITNESS WHEREOF, the undersigned Plenipotentiaries, being duly authorized to that effect, have signed the present Convention.

DONE at Washington this twenty-sixth day of October, one thousand nine hundred and seventy-three.

ANNEX

UNIFORM LAW ON THE FORM OF AN INTERNATIONAL WILL

Article 1

1. A will shall be valid as regards form, irrespective particularly of the place where it is made, of the location of the assets and of the nationality, domicile or residence of the testator, if it is made in the form of an international will complying with the provisions set out in Articles 2 to 5 hereinafter.

2. The invalidity of the will as an international will shall not affect its formal validity as a will of another kind.

Article 2

This law shall not apply to the form of testamentary dispositions made by two or more persons in one instrument.

Article 3

1. The will shall be made in writing.

2. It need not be written by the testator himself.

3. It may be written in any language, by hand or by any other means.

Article 4

1. The testator shall declare in the presence of two witnesses and of a person authorized to act in connection with international wills that the document is his will and that he knows the contents thereof.

2. The testator need not inform the witnesses, or the authorized person, of the contents of the will.

Article 5

1. In the presence of the witnesses and of the authorized person, the testator shall sign the will or, if he has previously signed it, shall acknowledge his signature.

2. When the testator is unable to sign, he shall indicate the reason therefor to the authorized person who shall make note of this on the will. Moreover, the testator may be authorized by the law under which the authorized person was designated to direct another person to sign on his behalf.

3. The witnesses and the authorized person shall there and then attest the will by signing in the presence of the testator.

Article 6

1. The signatures shall be placed at the end of the will.

2. If the will consists of several sheets, each sheet shall be signed by the testator or, if he is unable to sign, by the person signing on his behalf or, if there is no such person, by the authorized person. In addition, each sheet shall be numbered.

Article 7

1. The date of the will shall be the date of its signature by the authorized person.

2. This date shall be noted at the end of the will by the authorized person.

Article 8

In the absence of any mandatory rule pertaining to the safekeeping of the will, the authorized person shall ask the testator whether he wishes to make a declaration concerning the safekeeping of his will. If so and at the express request of the testator the place where he intends to have his will kept shall be mentioned in the certificate provided for in Article 9.

Article 9

The authorized person shall attach to the will a certificate in the form prescribed in Article 10 establishing that the obligations of this law have been complied with.

Article 10

The certificate drawn up by the authorized person shall be in the following form or in a substantially similar form:

CERTIFICATE

(Convention of October 26, 1973)

1. I, . . . . . . . . . . . . . . . . . . . . (name, address and capacity), a person authorized to act in connection with international wills

2. Certify that on . . . . . . . . . . . . . . (date) at . . . . . . . . . . . . . . . . (place)

3. (testator) . . . . . . . . . . . . . . . . . . . . . . (name, address, date and place of birth) in my presence and that of the witnesses

4.     (a) . . . . . . . . . . . . . . . . . . . (name, address, date and place of birth)

(b). . . . . . . . . . . . . . . . . . . . (name, address, date and place of birth)

has declared that the attached document is his will and that he knows the contents thereof.

5. I furthermore certify that:

6.     (a) in my presence and in that of the witnesses

(1) the testator has signed the will or has acknowledged his signature previously affixed.

*(2) following a declaration of the testator stating that he was unable to sign his will for the following reason . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

– I have mentioned this declaration on the will

* – the signature has been affixed by . . . . . . . . . . . . . . . . (name, address)

7.     (b) the witnesses and I have signed the will;

8. *  (c) each page of the will has been signed by . . . . . . . . . . . . . . . . . . . . . . . . . . and numbered;

9.   (d) I have satisfied myself as to the identity of the testator and of the witnesses as designated above;

10.  (e) the witnesses met the conditions requisite to act as such according to the law under which I am acting;

11. * (f) the testator has requested me to include the following statement concerning the safekeeping of his will: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

12.                                 PLACE

13.                                 DATE

14.                                 SIGNATURE and, if necessary, SEAL

* To be completed if appropriate.

Article 11

The authorized person shall keep a copy of the certificate and deliver another to the testator.

Article 12

In the absence of evidence to the contrary, the certificate of the authorized person shall be conclusive of the formal validity of the instrument as a will under this Law.

Article 13

The absence or irregularity of a certificate shall not affect the formal validity of a will under this Law.

Article 14

The international will shall be subject to the ordinary rules of revocation of wills.

Article 15

In interpreting and applying the provisions of this law, regard shall be had to its international origin and to the need for uniformity in its interpretation.

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The Dangers of Do-it-Yourself Wills

I often tell people that it MIGHT work out fine if they do their own will. Of course it might not. I like to tell people that we’ll find out after they die!

Well, a recent Florida case emphasizes this sentiment.  The Supreme Court of Florida recently heard the case of James Michael Aldrich v. Laurie Basile, et al. (No. SC11-2147).  In this case the decedent used an “E-Z Legal Form” will. She laid out every item with detail but failed to mention later acquired assets. She inherited a large sum after doing her E-Z Legal Form will and thus the will did not give away these assets. In fact, the laws of Florida gave those later acquired assets away to someone other than who she intended to give things to by her will.

In her concurring opinion in Aldrich v. Basile, Florida Supreme Court Justice Barbara Pariente wrote:

“While I appreciate that there are many individuals in this state who might have difficulty affording a lawyer, this case does remind me of the old adage “penny-wise and pound-foolish.” Obviously, the cost of drafting a will through the use of a pre-printed form is likely substantially lower than the cost of hiring a knowledgeable lawyer. However, as illustrated by this case, the ultimate cost of utilizing such a form to draft one’s will has the potential to far surpass the cost of hiring a lawyer at the outset. In a case such as this, which involved a substantial sum of money, the time, effort, and expense of extensive litigation undertaken in order to prove a testator’s true intent after the testator’s death can necessitate the expenditure of much more substantial amounts in attorney’s fees than was avoided during the testator’s life by the use of a pre-printed form.”

I am just a mere estate planning attorney so who am I to talk about things like “penny-wise and pound-foolish?”  However, the above quote is a Justice of the Florida Supreme Court. Hopefully her words mean something to you if you are thinking of doing your own will!

Florida, California, or anywhere in between hire an attorney to do your will!

Good luck whatever you decide!  -John

 

How to properly witness a legalzoom will

I met with a client this week who proudly showed me her old will. It was a fine legal document. It left her assets to her husband and then her kids. It set up a guardian for the kids. It named an executor. It was a fine will. As she pointed out there was a major typo in that one of her kids wasn’t included in part of the disposition paragraph but she believed that may have been her fault in setting it up. She acknowledged that she set it up on legalzoom.com

She also proudly showed me the notary page.  What? The notary page? For a will? In California wills are not notarized. The other documents, like powers of attorney, are to be notarized but not the wills.  The notary should have known better but they didn’t.  I am a California notary and it seems to be that every time I have studied for the notary exam I have been reminded that we can not notarize a will.

The law is set forth in California Probate Code 6110(c) which reads:

(c) (1) Except as provided in paragraph (2), the will shall be
witnessed by being signed, during the testator’s lifetime, by at
least two persons each of whom (A) being present at the same time,
witnessed either the signing of the will or the testator’s
acknowledgment of the signature or of the will and (B) understand
that the instrument they sign is the testator’s will.”

Notice it says the will shall be witnessed by two persons.  In fact, a notary can be one witness but they wouldn’t notarize the will. Instead they would sign the witness block.

Again, as stated before, Legal Zoom may create perfectly fine legal documents. However, if you don’t execute it properly all you have is a pile of paper! I am confident that Legal Zoom probably sends detailed instructions for signing the will. However, if it’s done right it’s as if it’s not done!

Get your will done right! Hire an estate planning attorney and make sure the will is signed and witnessed properly!

-John

Revoking a Will in California

There are several ways to revoke a will in California. It’s extremely important that these methods are carefully followed as failure to revoke a will properly means the old will is stiff in effect!

1) WRITE A NEW WILL. It’s really simple to write a new will and in that will state “I revoke all previous wills. This is a very good way to revoke a previous will. One of the keys to this method is that the people you care about know where the new original will is!

2) DESTROY THE OLD WILL. Ripping, burning, or other method of destroying an old will is certainly very clear. However, photocopies of wills can be admissible in probate court so also writing a new will is important in addition to destroying the old will.

3) I REVOKE. You can write on each page of the will “I REVOKE.”

In all the key is working with a competent and experienced California estate planning attorney as there are many pitfalls. Failure to revoke a will in full or failure to revoke it correctly can lead to problems after your death.

Lost Will in California Probate

Unfortunately a lot of people misplace their will, and/or trust, before they die.  They know it’s important and thus hire a California estate planning attorney to draft the necessary documents.  After they sign their documents their lawyer often gives them the original to put in a safe place. Then what….

Well, that’s the $64,000 question of course.  Put it in a safe or fire box? Put it in the bank safe deposit box? Leave it with the lawyer?  Give it a friend? There are so many options and thus so many possibilities of where the document might be after death.

If you can’t find a loved one’s will here are some thoughts:

1) Check the real estate records to see if the house is in a trust.  An attorney, with access to title records, can look into this for you.

2) Contact local attorneys and ask if they have a will for the person (best in a small town).

3) Check the probate Court to see a will was filed there.

4) Look through the decedent’s bank records to see if they paid an attorney money.

5) Of course, go through every single document in the house. Look in strange places because I have heard of many stories of wills being found in the most unique places.

If you can’t find a will then consider filing without a will. This works best if you are next of kin of course.

Let’s chat about the process and what your options are!  Contact me.  -John

Beneficiary Designations in Estate Planning

I just prepared wills for a young couple this week.  They have young children they want to protect.  They have modest IRAs, 401ks and life insurance.  However, they just can’t afford the expense of a living trust right now.  By preparing wills with “testamentary trusts” we have created an excellent estate plan that will protect the money for the children and also reduce the size of the probate by keeping their death beneficiary assets (life insurance, 401k’s, IRA’s, etc…) out of the probate estate calculation. This is a great way to plan when you just don’t have the money for a full revocable trust. The cost is less than half!  Of course we also do powers of attorney for finance and health care.  Contact me to discuss your estate plan!

The Simplest Will

A simple will, or last will and testament, can really be simple.  It can distribute your personal property, real property, name a guardian for your minor children, name an executor for your estate and mention your last wishes for cremation or burial.  Everybody who has anything should have a will at least!

You are running out the door to the airport for an important business trip and realize you want your significant other to receive your other if you die. That is because you are not married and thus they are not your natural bounty in the eyes of the law. You don’t have time to call an attorney. You don’t even have time for an on-line form program. You are stuck. You will not have a will… but wait there is an answer!

A holographic, or handwritten, will is 100% legal in California.  Go grab a piece of paper and start writing your wishes!  Make it clear it’s intended to  be a will.  Something like this:

This is my last will and testament.

I revoke all previous wills.

I give all my property, of any kind, to ______________________ .

I name _________________________ as Executor of my will.

Then sign your name and date it.

Then give the original to your significant other or other trusted person. It’s important to not lose the original “wet” ink version so make sure they put it in a safe place.

Is this as good as an attorney drafted will? No, of course not. It is more susceptible to attack but it is a 100% binding legal document and can be probated in California!

Good luck!

-John

Personal Property Distribution After Death

When you do an estate plan you often think of your house, your stocks, your bonds, your timeshare, your IRA, but what about your jewelry, your family photos, your furniture, and all of that?  In my experience these are the things that cause problems after death!  Make sure you identify this in your estate plan. Maybe by a specific list and maybe by a general clause but think about your personal property.  No, it’s typically not “worth” a lot of money in comparison to the rest of your assets but it can create fights and hardship after death.  Plan, plan, plan!

-John

Basic Estate Planning

I have heard clients say they don’t need estate planning because they don’t have an estate. This may be true.  A lot of people do not own real estate, do not have stocks and bonds, and maybe don’t even have a bank account. However, do you have a collection of small record albums you want to go to a special friend? Or a wedding ring you want your special niece to have?  Or maybe you have some family photos that people might fight about!?  You get the point I hope that you don’t have to be “rich” to have stuff that you want to give to specific people.

Additionally, you may have minor children. If you have minor children you should have a nomination of guardianship. What happens to those kids if you die without nominating a guardian? A MESS!  A nomination of guardianship typically is taken care of in a will but can also be done in a separate legal document called a “nomination of guardians.”

Then there are the powers of attorney. You should have both a financial and a medical power of attorney. Even if you don’t have a lot of assets you should have a financial power of attorney to deal with quasi financial affairs such as going to the post office or the DMV should you not be able to do so.

Lastly, you should have a medical power of attorney or health care directive. This would appoint someone to make medical decisions for you and would cover your wishes should you end up in an irreversible coma or persistent vegetative state.

Call me and let’s get something put together for you and your family!

-John

Will AND Trust

Clients always ask which is right for them, a will or a trust.  In California the answer is generally BOTH!

The centerpiece of an estate plan is one of three choices:

1) DO NOTHING – Use the state sponsored plan… if you dare!  The state plan generally distributes assets to next of kin and/or your spouse. This can lead to confusion as the treatment of community property and separate property are different.

2) A WILL – Using  a will as the centerpiece of an estate plan makes especially good sense for young couples with young children. It’s a way to establish a guardianship after death and establish a “testamentary trust” to protect assets for your children so they don’t get everything at age 18.

3) A TRUST – A California revocable “living” trust is the third option and is really appropriate for the majority of clients I meet with.  When the trust becomes the centerpiece there should ALSO BE A “pour over” will to act as back-stop.

The advantages of a living trust are many but here are just a few:

1) Avoid Probate – This is a costly beast after death and many like to avoid it.  The combination of attorney fees, executor fees, and Court costs can be up to 7% of your GROSS estate.

2) Keep your affairs PRIVATE – Probate is a very public process where documents are available for all to see. In fact, in some counties documents are accessible on-line for FREE to the general public. This includes the Sacramento probate Court where all documents, including your will after death, will be viewable by all!

3) Protect Your Assets BEFORE death – A trust is not just for after death. It can have someone appointed to protect your assets before death should you become incapacitated as well as to protect you from scam artists who prey on the elderly.

4) Make things EASIER for your loved ones – This is probably the #1 reason clients give me for doing a trust. They want to make things as easy as possible after death. A living trust is that hands down!

5) Speedy Distribution after death – Probate ties up your assets for a minimum of 7 months. A living trust makes money available immediately upon death.

There are many more reasons why a trust is advantageous over a will as the centerpiece of a California estate plan. However, there are other documents including powers of attorney, general transfer, certified extracts, deeds, and other documents that complete a proper estate plan. Don’t cut corner!  Do everything to protect your assets and make things easier for your loved ones!

Read more Estate Planning Articles here

-John