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Elderlaw: 02/15/2015

Changing a will

Dear Len & Rosie,

I am unmarried. I have no kids. I own a home and a vacation rental. I have written a will in case I die unexpectedly. Does a will have to be witnessed? If not, is it completely invalid? Do I need an attorney to hold onto the will to make sure that it is implemented? Is there any difference between having an attorney implement a will and having a brother or sister implement the will?


Dear Burt,

You may create your own holographic will that doesn’t have to be witnessed. All you have to do is to write out your wishes in your own hand, and sign and date your will. If you type out the will on a computer or typewriter, or someone else writes it for you, then to be valid you must sign your will before two adult witnesses, neither of whom may inherit from you upon your death.

But you get what you pay for. Your heirs will have the pleasure of experiencing probate after your death. If your estate is worth $1,000,000, then a lucky probate lawyer will earn statutory probate fees of $23,000. The executor you named in your will, if you named one, gets another $23,000. If your estate is worth $1,500,000, the lawyer and executor each get an extra $5,000 for precisely the same amount of work. And there may be extraordinary fees for extra services such as selling your home and vacation property. To top it off, most probates take from 9-15 months to complete. Look at all the money you saved by doing a simple holographic will.

Of course that’s assuming that the person who found your will hidden beneath your mattress didn’t make it disappear so he could inherit more from you under your previous will or by intestate succession (the law about who gets what when someone dies without a will). There’s a good reason why many lawyers keep their clients’ original wills for safekeeping.

Yes, it’s possible to do your own estate planning, but how would you even know that your homemade holographic will does what you want it to do? How would you know that your plan is what you really need? There are many things you may not know how to deal with in an estate plan, such as restrictions against gifts to caregivers, spendthrift heirs who are bankrupt or owe back child support, Special Needs Trusts for disabled beneficiaries, Medi-Cal estate recovery claims, Estate Taxes and Generation Skipping Transfer Tax, Proposition 13, and IRA beneficiary designations, to name a few.

That’s why we hesitate to tell anyone that they can create their own will, or even a trust to avoid probate, and expect everything to turn out the way they expect. It’s like setting a broken bone. Sure, a boy scout could do it in a pinch, but you’d prefer a physician. Experienced trusts and estates attorneys do a lot more than filling out forms. They know what questions to ask and the best way to translate a client’s desires into an estate plan that will work.

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 Len also answers legal questions each weekday, Noon-1 p.m. and Sundays, 4-7 p.m. on KGO Radio 810 AM.

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