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Elderlaw Advocates

Elderlaw Advocates

 

Dear Len & Rosie,

My sister is planning to write her will and give her house to me upon her death. She already has an advance directive. Neither she nor I can afford to retain an attorney for his or her services. She wants to write her instructions and have it notarized. Her house is her only asset. I realize that since you are attorneys, it’s a given that you would advise her not to do that. We just plain cannot afford legal services. Will a notarized will be a problem? There is no one to contest her decision so that would not an issue. Should we use one of those digitized form templates and have that notarized? Thank you in advance.

Maria

Dear Maria,

Our advice in this column is always at no charge. We write the column to inform the public of their options regarding estate planning and some common pitfalls to avoid.

Wills are not notarized in California, ever. Wills must be witnessed by two adults who are not inheriting under the will. If your sister wants a cheap and easy will, she can download one from the California State Bar webpage at www.calbar.ca.gov. Or she can just email us and we’ll email her the form.

The problem with wills is that they do not avoid probate, which is very expensive and takes one to two years to complete. If your sister wants to avoid probate, she has a couple more options. One is to sign and record a Revocable Transfer On Death (TOD) Deed from herself to you. She can have a lawyer prepare the deed, or she could pay a title insurance company to do it for her. We don’t recommend doing it yourselves, because it’s way too easy to make expensive mistakes when drafting deeds.

There is an alternative that may be better for you. If you both reside in the home, your sister can add you to the deed as a joint tenant. If she does, and she dies at least a year after you were added on title, then you’ll be able to keep your sister’s Prop 13 protected tax assessment upon her death because of the transfer exemption between cohabitants. The downside is that if your sister changes her mind, she’ll have a fight on her hands with you, if you don’t agree to give her back your interest in the home.

Your sister, and you for that matter, should have a Durable Power of Attorney, in addition to her will and an advance health care directive. While she can have a lawyer prepare one for not much money, there are also forms available for this on the Internet. She should look for the California Statutory Durable General Power of Attorney online.

Dear Len & Rosie,

I was advised to plan out a will, which I have done, but I am running into a problem. I am not a rich lady, and my will was done for me by my church at no cost to me. In the event of my death, I want my wishes to be carried out to the letter. I don’t want any of my immediate family notified of my death. Is there way to prevent this from occurring?

I also do not want an autopsy on my body, as I feel that it would be disrespectful, and it’s my body and my choice, not theirs. I have had arguments with the coroner’s office about this. I told them I would even put it in writing that I don’t want an autopsy even if my death is considered suspicious. It didn’t seem to matter to them. Is there any way to make sure that my wishes are carried out?

Tammy

Dear Tammy,

If your estate is subject to probate in the courts, or if you die with a trust, then your relatives who would have inherited your estate by default, the “intestate heirs” of your estate, are entitled to notice of the probate or trust administration, even if the will or trust disinherits all of them. If you want to avoid providing them with any notice, then designate pay-on-death beneficiaries to all of your accounts. If you own a home, you can record a Revocable Transfer on Death deeds, which are revocable so you may update them at any time.

With respect to the disposition of your remains, you need an Advance Health Care Directive, so that someone you trust can make arrangements for your burial or cremation after your death. Make sure that you name an agent, or alternate agent, who is younger than you are. If you can afford it, you may also prepay for your funeral and burial or cremation arrangements. With any luck at all, you’ll be safely in the ground before your relatives even learn of your death.

In your Advance Health Care Directive, you can also specify that you don’t want an autopsy, but unfortunately that may not put an end to it. Typically, an autopsy is performed when a deceased’s physician isn’t willing to sign off as to the cause of death. You can also count on an autopsy being performed if it appears that your death is the result of foul play. In cases of suspected homicide, the law considers the interests of the people in finding and punishing your killer to be more important than your right to privacy with respect to your remains.

You have a lifetime to prepare for your final reckoning, but when you pass away, it’s out of your hands. Regardless of what happens to your spirit, what happens to your corporeal remains and your belongings is governed by the law. While it is possible, with some difficulty, to live a private life, it is more difficult to die a private death.

Dear Len & Rosie,

My mother died three years ago. My father is still alive. We are trying to upgrade the house. My father granted me the right to the property, but when I tried to apply for a loan, the title company told me that my mother still owns one-third of the property. The title company suggested that we have to do a probate since my mother died without a will. Is it necessary to do probate, since my father is still alive? And what will be the easiest and most inexpensive way of clearing title?

Jose

Dear Jose,

Most married couples buying property together purchase their homes in both spouses’ names as joint tenants, or more recently, community property with right of survivorship. When parents add their children to the title of their home, they usually title the property in joint tenancy. Joint tenancy is cheap and easy to deal with; all you would need to do to remove your mother’s name from the title to the home would be to sign and record an Affidavit of Death of Joint Tenant with a certified copy of your mother’s death certificate attached.

Since we do not have a copy of the deed to your parents’ home to review, it’s probably safe to guess that the property was either titled in your parents’ names as community property, or maybe as a tenancy in common. Either way, your mother’s interest in the home belongs to her probate estate and may be subject to probate.

A full probate shouldn’t be necessary. It’s almost certain that your parents’ home was their community property, as it was likely purchased with money they earned during their marriage. Since your mother died without a will, her husband inherits all of the community property by “intestate succession,” the law that says who gets what when someone dies without a will.

Instead of filing for probate, your father can hire a lawyer and file a Spousal Property Petition. Unless someone objects, claiming that the home really wasn’t community property, the judge will grant the petition and issue an order transferring your mother’s interest in the home to your father. A Spousal Property Petition is much quicker, cheaper, and easier than filing for probate. Once you record the court’s order, you and your father will have the clear title necessary for the title company to close escrow on your loan.

After that, your father should review his own estate plan, if only so you can avoid dealing with these problems a second time after your father passes away. He could either hold title with you as joint tenants, or he could create a revocable trust.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at Tillem McNichol & Brown, 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at lentillem.com.

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