Wills are just one of many tools that can be used in the estate plan process to help clarify a person’s final wishes. A properly written Will can be a legally binding document that adheres to the probate code of California, dictating, among other things, who will be in charge of the distribution of your assets, how your assets will be distributed, and who will receive an inheritance.
When I meet with clients, they are often shocked to discover that wills DO NOT avoid probate. In fact, probate is the process used by the Courts to validate a will and make certain your loved ones adhere to its directions. This means that having a will in place will not avoid the financial and legal burden that is often associated with probate. Just because a will does not avoid probate does not mean wills are useless.
Important questions to ponder as you create your will include: Who do you want to serve as executor of your estate, and how much do you trust them with financial matters? How do you expect your belongings to be distributed? Who do you want included or disinherited from your will? Do you intend to include step-children in your plans? If a loved one dies before you, how do you want their share distributed? If you owe taxes at your death, who will be paying them and how will they pay for them? These are just a small sample of the topics that can be addressed in a will. They help to give your loved ones, and the court system, a sense of direction as they distribute your belongings.
People often overlook the consequences of having a poorly prepared will. In this article, I’ll discuss a variety of important factors to consider when drafting your will. There are several necessary components to a valid will:
- It must be signed and dated by the decedent or in some cases at the direction of the decedent.
- It must have a valid witness statement from two non-interested witnesses. Having your will notarized is an invalid substitute for witness statements.
- The language used in the document and witness statements must comply with California probate code.
If any of these components are missing, the will can be considered invalid and can cause a myriad of legal and financial burdens for your loved ones. These issues are especially common for people who opt for “do-it-yourself” wills. The easiest and best way to make certain your will meets these three requirements is to work with an attorney.
Since wills are only used after your death, there is no way for you to fix this problem once it arises, and your loved ones will be left with the mess. The only way to “fix” this problem is to prevent it in the first place.
Most often, the invalidating issue relates to the witness statements. Many “do-it-yourself” wills are missing the correct language and only have a place for the witness to sign. If the proper language is not used in the witness statements, the courts will require us to track down the witnesses and have them sign a sworn statement after the person has died.
Trying to track down a witness after a person has died can be extremely difficult, especially if we have no identifying information other than their signature. All the wills I prepare include printed names and addresses of witnesses on the documents so that it is easier to track witnesses later, if need be. Of course, I always use the proper language so witnesses should not need to sign additional sworn statements after your death.
In some instances, even with wills that are drafted correctly, loved ones will contest a will or present competing wills. In these situations, these witness statements are crucial. Having an impartial attorney as your witness makes for a much stronger case.
Do-it-yourself, or DIY wills, often fail to adhere to the probate guidelines in California. One of the most common oversights in a DIY will is failing to outline bond requirements. In California, absent a statement in the will, a bond will be required to help guarantee that the executor acts in a financially responsible manner while handling the probate. If the executor steals from the estate or acts irresponsibly, the bond will pay the estate back.
Although this may sound like a good precautionary matter, bonds cost money and have to be renewed yearly during the probate process. This can add thousands of dollars to the probate expense, and will be taken out of any inheritance left to the beneficiaries.
If the bond is not waived, the bond process requires that the chosen executor be subjected to a credit and background check to qualify for a bond. If, for any reason, they do not qualify, someone else will be chosen as executor or the beneficiaries will need to agree to waive the bond. Imagine the problems that would occur if just one beneficiary refused to waive bond because of a personal grudge. Things could get ugly really quickly, and ugly probates will cost even more time and money.
On the opposite end of the spectrum are wills that waive bond for an executor who is not believed to be honest or trustworthy. Assuming the decedent chose a trustworthy person, there should be no reason for a bond. Whether a bond is required or waived is just one of many decisions to make when creating a will.
Don’t you think you’re the best person to decide whether or not a bond is required for the executor that you choose? Only you know that person and your family dynamics well enough to make an informed decision about bond requirements. DIY wills often gloss over these details, leaving behind invalid or inefficient wills that loved ones are left to handle. An attorney’s guidance is helpful in making these important decisions so that your specific family situation is considered in the text of the will.
Another decision is whether to give Independent Administration of Estates Act (IAEA) powers to the executor. In the past, when an executor wanted to do anything, they had to get court approval, even for small things like selling a car. Years ago, the IAEA was created to give executors powers to do the small actions without court approval. For larger acts, such as selling a house, they gave shortcuts to the process so that things could be done smoothly and without court approval. The IAEA powers can significantly reduce the time and effort required to administer a probate.
In order for an executor to have IAEA powers, the Will has to state the executor does have those powers. I have seen some do-it-yourself wills that have IAEA language from states other than California. I have also seen many do-it-yourself wills that do not have IAEA language at all. Absent that language, if court approval is required for all acts, it can add time and usually expense to the probate. In one situation, I had a probate where court approval was required to sell a house. Over $20,000 of additional expense was incurred because of the extra requirements of the court approval. This is why, generally speaking, I specify IAEA powers in any Will that I draft and I make sure that it is compliant with the California requirements. As you can see, when it comes to crafting your will, making the wrong choice can cost an estate tens of thousands of dollars.
Although your situation may seem straightforward, even a “simple” will requires careful thought and preparation to adhere to the probate code of California. A will can provide clarity for your loved ones, prevent possible family disagreements, and save your loved ones’ time, effort, and money. For a document that carries such immense responsibility, it is generally agreed that it is best to use an attorney to draft your will.
Even when people think their personal situation is straightforward (just give it all to my husband), logical (of course I want my kids to receive an inheritance), or completely clear (I have always valued my stepchildren as my own), a will is a wonderful way to concretely state your intentions so your loved ones can proceed accordingly, under protection of the law.
Matthew Hart is a California Licensed Attorney who is an Estate Planning, Trust & Probate Law Specialist certified by the State Bar of California. His office is in Antioch and he can be reached at 925-754-2000 or www.MatthewHartLaw.com.
This article is a compilation of excerpts from articles by Matthew Hart that were originally published in the Antioch Herald newspaper.
