Wednesday, January 2, 2013

What are the Risks of Preparing Your Own Will in Orange County?


The most common reason for preparing “do-it-yourself” wills or documents from downloadable forms online is cost.  Many people shy away from what they perceive to be high legal fees.  But expenses can be relative.  You may have saved money by using an online form for only a few hundred dollars.  But you (or actually your heirs) lose money by paying more in estate taxes if the document is not prepared correctly.  Moreover, the anxiety of your heirs in wanting to know how much they would get – and if they will be the ones to get it – far outweighs whatever savings you may have initially made.  You draft a will in order to give yourself peace of mind.  You can only get that peace of mind if your document is valid and well-drafted.  And only with the help of a lawyer can you be sure that it is properly written.
   
FORMS AND BOOKS: Information about drawing up your own estate plan is available on the internet, in bookstores, in various types of software, and you can always find a form in a book store. Many forms and books claim that they were prepared with California law in mind, but it is discouraging to see the number of forms and books that make basic mistakes which can ruin an estate plan.

    Many will forms, for example, include a place to notarize the testator's signature. That is not the proper procedure in California and the Secretary of State's office has warned California notaries to seek an attorney's advice before notarizing an estate plan.  (Wills should not be notarized because two witnesses are required for it, and the Notary is only one witness.  Even if two Notaries were used, the required text of an acknowledgment used by a Notary Public is not sufficient.)  If you are going to use a form consider reading the relevant sections of the California Probate Code, which is the official source of information about the requirements for a valid estate plan. You can find the Probate Code online at www.leginfo.ca.gov/calaw.html
    
    HOLOGRAPHIC WILLS: One type of do-it-yourself forms is the holographic will, which must be in the testator's handwriting (in other words, not typewritten or printed). It must be signed by the testator, but unlike other types of wills or living trusts, no witnesses are required. This type of document also should be dated, although this is not mandated by the Probate Code. Courts have been lenient in trying to interpret these documents when questions arise, but judges will not rewrite a holographic will to make it valid. This is probably the most risky do-it-yourself estate plan because of the lack of guidelines involved. The results can be so ambiguous and incomplete that this can cause more trouble for the estate than if the testator than if there was no plan in place.

    DISTRIBUTION PLAN: Whether you are filling in the blanks in a form, writing a holographic will, or using software to write a living trust, the distribution plan is the heart of the estate plan. The question here is: Who will be your beneficiaries, and how much should be received by each person, charity or institution? Equal shares for everyone? Specific assets or amounts of cash for everyone? Should an inheritance be held in trust until age 21? The choice is yours.

    You also should consider the possibility that one or more of the persons mentioned in your will might not survive you. Each bequest either should have an alternative recipient, such as the original heir's children, or the bequest should "lapse" if the heir does not survive you. All heirs should be adequately identified by name and/or by relationship to the testator, and charities and other institutions should be described by their full name and address.

    EXECUTORS: The executor is the person who will manage your estate after you have passed away. Generally the person or persons nominated as executor will be appointed as executor by the court, but if you do not propose an executor, the court will rely on state law to make the choice. (Probate Code section 8461 has a list of persons who have priority to be appointed as administrator of the estate if no executor is nominated in the will, or if there is none.)

    Here again, you should consider the possibility that your first choice for executor might not survive you. For that reason, you should propose several executors. In most cases your will also should waive the bond for the executor. However, most California courts will not waive bond for an out-of-state resident.

    WITNESSES: In California two witnesses are needed for a will that is not holographic.  The Probate Code provides that the witnesses must watch the testator sign the plan and then each witness must sign a statement in the plan saying that the witnesses saw the testator sign the will.  The witnesses also must understand that the document is the testator's will or trust. The witnesses should not be related to the testator nor should they be beneficiaries of the estate. 

    A WILL SHOULD NOT BE NOTARIZED.  The notarization counts as only one witness, and this document needs two witnesses. The California Secretary of State's office advises Notaries not to notarize the document unless an attorney advises it.  Most attorneys would not advise notarizing a it because two witnesses are required, and the witnesses must state in writing that they saw the testator sign the estate plan.

    GUARDIANS FOR MINOR CHILDREN: If the testator's children are under 18, the will also should nominate a guardian or guardians for them. This provision will be helpful in any future proceeding to determine guardianship for the children. However, a nomination of a guardian in a will is not binding on the court that is reviewing the guardianship petition.

    TESTAMENTARY TRUSTS FOR MINOR CHILDREN: The estate plan should also have some provision to retain bequests for children in a trust until they reach a specified age. The age when the trust is distributed to the child can be as young as 18, but many parents prefer that their children receive their inheritances when they are older to ensure that funds will be available for their college educations. The trust should specify whether the child will receive the income from the trust, or whether it will be retained in the trust, and how the trustee can spend the principal on behalf of the child. The trust also should appoint a trustee and several backup trustees.

    OTHER SUBJECTS TO THINK ABOUT:  If a will is your only estate plan, it might have to go through probate. See the Probate Page and the Living Trust pages for details. You should also consider a Durable Power of Attorney for Financial Purposes and an Advance Health Care Directive. If your will is ruled invalid by a court, then your estate is going to be distributed through Intestate Succession.  If you hear an offer that sounds too good to be true, it could be a scam.  Also, your will does not affect joint tenancy property, but it may affect tenancy in common property.

    THE RISK INVOLVED WITH DO-IT-YOURSELF ESTATE PLANS: There are obvious savings in legal fees by using do it yourself forms, but there are also risks involved. One of them is that problems, such as defective forms, violations of state law, or improper witnessing, will not be apparent to the testator or trustees when the documents are signed. It may be only after death occurs many years later when the problems are discovered, and at that point it is too late to revise the will or trust. The family might find, for example, that the plqn does not accomplish what the testator wanted and that the local courts are unwilling to allow any change to the estate plan.