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Elderlaw: 10/01/2007

Elder Law



Dear Len & Rosie,

I have a friend who does not have a will or trust, or anything for that matter. I want to know if a holistic will would stand up in court. All I want is for her to designate me for taking care of her house, as I know she does not want her siblings to have anything to do with it. I have tried to get her to get a will, trust, etc. etc. for the last five years again to no avail. I am co-signer on most things for her and take care of her finances, but I cannot get her to do a will or a trust. I know what she wants me to do with the house and everything else.

Rosemary

Dear Rosemary,

You meant to say, “holographic” will instead of “holistic” will. A holographic will is a will written in the hand of the testator, the person whose estate is disposed of by the will. A holistic will? Well maybe you can get one from a New Age spiritual advisor. There’s no such thing as a holistic will. It’s not a legal term, but people who aren’t lawyers frequently make this mistake.

Your friend can create her own holographic will by writing out what she wants done with her assets upon her death in her own handwriting. She should also date and sign the will. You cannot write it for her and let her sign it. She has to do it herself. If someone else writes the will, your friend has to sign it before two adult witnesses, neither of whom may inherit anything under the will.

Will your friend’s handwritten will stand up in court? It’s up to the judge. Holographic wills are a bit of a mystery, because the judge is always put in the difficult situation of trying to determine whether or not the document is actually a will. There has to be “testamentary intent”, which means the will should state explicitly that it’s a will and that your friend’s assets should be distributed upon her death the way it’s called for in the document. In a recent appellate court decision, a holographic will was upheld where the testator’s “signature” was signed in block letters at top of the front page.

If the will is valid, then what does the will mean? You wrote that your friend wants you to take care of her home and she doesn’t want her siblings to have anything to do with it. Does that mean your friend wants to name you the executor in charge of selling the home and dividing the money amongst her siblings, or does it mean she wants you to inherit the home upon her death? If your friend’s will is ambiguous, her holographic will can make things worse, because everyone who has something to gain will hire lawyers to represent them in court.

Your friend is best off biting the bullet and hiring a lawyer to prepare a trust or a will for her, together with a power of attorney and advance health care directive. If she’s not willing to go that far, she may be better off with a California Statutory Will, which is a fill in the blank form created by the legislature. You can download the form from the California State Bar web page at www.calbar.ca.gov.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at www.lentillem.com. Len also answers legal questions each weekday, Noon-12:45 p.m., and Sundays, 4-7 p.m. on KGO Radio 810 AM.

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 996-4505, or on the Internet at lentillem.com. Len also answers legal questions each weekday on The Len Tillem Show, a podcast available via iTunes, Facebook, www.spreaker.com/user/lentillem and lentillem.com.
Email: lentillem@kenwoodpress.com

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