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

 

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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

The Basic Estate Plan

“No, I don’t need an estate plan, just a simple will….”

Oh really!?

I hear this a lot.  People think an “estate plan” is only for the rich people or an estate plan is going to cost too much.  Even the most basic documents, like a SIMPLE WILL, is part of an ESTATE PLAN. For that matter having no documents is part of an estate plan… one decided by the California legislature!

While it’s true that many clients do not need a living trust that does not mean they should use a computer program, paralegal or general practice lawyer to do their estate plan.  The ways to mess up an estate plan are many and the costs are huge.  The costs are not only monetary but emotional.

Talk to a licensed and experienced California CERTIFIED SPECIALIST IN ESTATE PLANNING, TRUST AND PROBATE LAW about your estate plan.  A basic plan should probably include some, or all, of the following:

- Will (with testamentary trust if anybody under 25 or 30 may inherit);

- Power of attorney for financial affairs;

- Power of attorney for medical affairs;

- HIPPA release;

- Nomination of Guardian (can also be in the will);

- Assistance with change of beneficiary forms for life insurance, IRAs, 401ks and other assets with a death beneficiary.

Again, Contact a Professional to get it done right. The costs of doing it wrong are really too great!

-John

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