Posted on

Elderlaw Advocates

Elderlaw Advocates

Dear Len & Rosie,

My mom is 76 and was diagnosed with esophageal cancer last month. She has a handwritten will that she gave me last year. She’s concerned now that maybe that isn’t enough. Her main asset is her home, which probably has $200,000-$300,000 in equity. Should she record the will to make it more valid or should she get a trust? She’s been on chemotherapy and she’s starting radiation next week. Any advice would be appreciated.

Christine Dear Christine,

In California, handwritten or “holographic” wills are legal. Your mother’s holographic will is valid provided that she wrote it in her own hand and signed it. It should be dated too. That isn’t a strict legal requirement, but the law presumes that an undated holographic will was signed before any other will she signed that was dated. Readers outside of California should know that not all states recognize the validity of holographic wills.

Recording a will is pointless even if the county recorder lets you do it. It wouldn’t add to the authenticity of your mother’s will for her to record it, and recording her will won’t protect your mother should her original will be lost. The same goes for taking your mother’s will to a notary public to have her signature acknowledged. California wills are not notarized.

We do not have a copy of your mother’s will to review, so we can’t tell you if it shall work to distribute your mother’s estate. You and your mother may want to have an estate planning attorney review it for you. The rules of interpreting wills to see what the words mean is based on legalese, not common English. It is very possible that your mother’s wishes are not accurately reflected in the language of her will.

Keep in mind that with a will, your mother’s estate shall be probated in the courts after her death. Also, probate lawyer fees are based on the gross value of the estate, not the net. If her home is worth $500,000 before subtracting what she owes on it, probate will cost her heirs at least $13,000 in lawyer fees. Probate also takes at least one or two years to complete. She may want to consider a revocable trust, or even a revocable transfer on death deed.

Perhaps more importantly, if she made her own will, it’s not very likely that she has a durable power of attorney or an advance health care directive. She needs these, desperately, so that you or other trusted family members or loved ones will be able to manage her affairs should she become incapacitated.

Len & Rosie

Dear Len & Rosie,

My friend’s husband passed away three months ago. She and her husband got married only recently, but had lived together for 30 years. He owned the house in his name alone. Unfortunately, there was no will. He has a daughter from a previous marriage who is trying to take the house. Additionally, she’s been told she’s not entitled to her husband’s Social Security. Is there anything I can do so that she can keep the house? I just can’t believe his daughter is entitled to take something that was never hers.

Debbie Dear Debbie,

Your friend’s husband died without a will. That means his home and everything else in his estate shall pass by intestate succession; “intestate” means “no testament,” as in “last will and testament.” Intestate succession is the default estate plan created by the California legislature. It’s the state’s best guess as to how most people would want their assets distributed when they die. It’s a shame our government declined to disinherit wicked daughters from prior marriages.

Your friend will inherit all of the community property, but there probably isn’t any, as her husband was probably already retired when they got married. She will also inherit either one-half of his separate property, if her husband had only the one daughter, or one-third of the separate property if he had more than one child. So, at best she will own half the home.

The only way your friend would be entitled to more than that is if she could prove that her husband promised to leave her everything, or at least the home, and that there’s a written contract or that she acted to her own detriment in reliance of her husband’s promises. Please understand that this is a Hail Mary pass and isn’t likely to succeed unless she has a lot of evidence in her favor.

Your friend’s husband could have avoided this problem by making a will, and he could have even done it for free by downloading the California Statutory Will form from the State Bar webpage at www. calbar.ca.gov. If he had wanted to protect his daughter too, he could have created a trust that gave his wife the right to live in the home until her death. But it’s too late for that. The best your friend can do now is to make a deal with her husband’s daughter. Maybe she’ll be willing to forgo selling the home now in return for inheriting the entire property upon her stepmother’s death.

As for Social Security, the rule is that a couple has to be married for at least one year for a surviving spouse to collect a pension off of the deceased spouse’s earning record. If your friend’s husband died before their first anniversary, there’s nothing that can be done.

We hate to be the bearers of such bad tidings, but we do so in the hope that readers of this column will take note. Nobody wants to spend money on lawyers, but with regards to estate planning, saving money in the short term frequently costs more money and creates more problems in the long term. Getting married or divorced is always a reason to consult with an estate planning attorney to make sure that your affairs are in order. If your friend and her husband had done that, your friend wouldn’t be in such trouble today.

Len & Rosie Dear Len & Rosie,

My mother has a living trust naming myself and my brother as her heirs. My brother just passed away, and my mother wants to make some changes. The trust was written to give my brother’s half to his wife if he died first. My sister-inlaw moved out and divorced my brother while he lay dying in the hospital. Naturally, my mother does not want to leave that witch anything. She wants to cut her out of the loop and leave my brother’s half to his son and daughter. I read somewhere that it is okay to write the changes on the typewritten page and just initial them. Will this make it legal until she has the time to get in touch with the company that wrote the trust to have the changes made permanent? Would it be okay if she asked me to write in the corrections for her (her handwriting is very poor), and then have her initial the changes in her own handwriting?

Sandy Dear Sandy,

Your mother should not make handwritten pen-and-ink changes to her trust document, and you shouldn’t either. Your mother has a trust, which is very different from a will, and what you propose doesn’t really work for wills either. Your mother can amend her trust only by the procedure set forth in the trust document. Handwritten changes to the trust may not be legally effective. If your mother is on her deathbed and must change her trust quickly before it’s too late, you could write out or type an amendment to her trust, and your mother could sign and date it, preferably before a notary public. After that, you should cross your fingers and pray that you did it right. We cannot tell you exactly what the amendment should say without reading your mother’s trust first. It would be very easy for you to make a mistake that will allow your dear sister-in-law to sweep down on her broom and cart off as much of your mother’s property as she can lay her knobby hands on. If you prepare the trust amendment yourself, your sister-in-law will accuse you of trying to steal her inheritance by unduly influencing your mother to disinherit her. The lawyers will make more money litigating your sister-in-law’s claim than they would have made drafting a simple trust amendment.

Your mother should seek the help of a lawyer to amend her trust. A lawyer will also be a neutral witness as to your mother’s intentions and her mental capacity. Your mother does not have to go back to the “company” that made her trust to have her changes prepared. In fact, since most “companies” selling trusts are trust mills that provide little in the way of actual legal advice, your mother would be better off having her amendment prepared by a trusts and estates attorney. While you are at it, help your mother make sure that all of assets are in the trust, except for her vehicles, her personal checking account, and her IRAs and other retirement benefits. This will ensure that her estate will not have to go through probate. She should also review the beneficiary designations of her IRAs and any life insurance policies she may own.

Len & Rosie

Share