California Probate - Law Offices of Janet Brewer Blog

Holographic Wills and Why to Avoid Them

In California, you could create a holographic will, but it is best to avoid them for several important reasons. These handwritten wills must meet many legal requirements to be valid – leaving plenty of room for mistakes – and they may be easier to challenge in court.

Many Legal Requirements for Holographic Wills

California law mandates that holographic wills meet certain standards to be considered valid. Typical, typed or printed wills have to be properly witnessed and must be made when the testator has capacity. Sometimes, people decide to handwrite wills and not have them witnessed in accordance with the laws for typical wills. But the law allows assets to be distributed according to a holographic will if the signature and the material provisions are in the will maker’s handwriting. If the holographic will does not contain information about its execution date, then:

• The holographic will is invalid to the extent of any inconsistency with another will unless the court can establish that the holographic will’s execution date is after the other will’s execution date; and
• If the will’s creator lacked testamentary capacity at any time during the period when the holographic will might have been signed, then the holographic will is invalid unless the court can establish that it was executed at a time when the testator did have testamentary capacity.

Although a will is holographic if the signature and material provisions are handwritten by the will’s creator, it can also contain printing (as with a commercially printed form will). Sometimes people use form wills and write in full sentences or cross out and add in information in the margins, so that law takes that into account.

Challenges to Holographic Wills

Holographic wills may be more subject to challenge in probate court because they are handwritten. They may contain words that are difficult to read or unclear contradictions. They also may be challenged due to their inconsistency with another will that is not handwritten.

Further, handwritten wills that were not witnessed face challenges of fraud, deception, or lack of capacity. The person making the will may have been deceived into copying a document or adding a signature without reading the will. Or the will maker might not have had the ability to understand what he or she was writing or signing. All of these issues can lead to lengthy probate court battles, so having a will prepared by a professional and properly witnessed is a better option.

Want to make your will? Look to Janet Brewer, Esq. for thorough and thoughtful estate planning advice. Janet’s more than 20 years of legal experience will give you confidence and peace of mind. To schedule a “Get Acquainted” meeting, visit Janet's website or call her office at (650) 469-8206.

Multiple Wills in Different Countries: Do You Need Them?

If you own property in multiple countries, you may need multiple wills. While not everyone needs more than one will, your situation and the countries where you have ties could require it. Here are a few tips for people who are starting their estate plans.

You May Need More than One Lawyer

First, if an estate planning lawyer decides that you need a will in another country, you will most likely need a second lawyer. You need one lawyer licensed in the United States, preferably in the state where you own the most property or spend the most time. You also need one lawyer located in the foreign country or licensed to practice law there. The United States lawyer should prepare or at minimum review the will under U.S. state law. The foreign lawyer should prepare or at least review the will under foreign law.

Contents of the Wills

The two lawyers should ensure that the two wills are consistent and do not overlap. For example, the United States will should specifically exclude all assets distributed by the foreign will, and vice versa. The U.S. will should specify the state law that applies. Also, you may want a provision mentioning that there is a second, foreign will so that your relatives know to look for it.

If the will leaves any assets to a trust, some special considerations arise. For example, it is often important that a United States citizen leave assets only to a U.S. trust because of expensive taxes on foreign trusts.  The trust should include language about migration of beneficiaries or trustees if any might relocate in the future. Further, the will should make very clear where the trust documents are kept and which part of the estate goes into the trust.

Drawbacks to Multiples Wills

Obviously, having to employ two different lawyers in different locations adds to the cost of preparing your estate plan. But in some jurisdictions, you may need to pay a notary to prepare a will instead of a lawyer. Often notaries charge a percentage of the foreign property’s value in exchange for making the will. This can increase cost above what you would pay for a lawyer.

Further, if you make any changes to one of the wills or the rest of your estate plan, your attorneys will need to consult each other. If you do not change one of the wills, it could conflict with your other will, your trust, or other documents. Talk to an estate planning lawyer locally to learn more.

Planning your estate? Look to Janet Brewer, Esq. for thorough and thoughtful estate planning advice. Janet’s more than 20 years of legal experience will give you confidence and peace of mind. To schedule a “Get Acquainted” meeting, visit Janet's website or call her office at (650) 469-8206.

Fight over Estate in UK Creates Interesting Battle

Four large charities are locked in a fight against the son of an Alzheimer’s patient amidst charges of a fraudulently created will for another woman.

Two key facts are not under dispute in an estate battle in the United Kingdom. The facts are that Dorothy Whelan executed a will in 1982 leaving her £1.6 million estate to four charities and a second will was created in 1999 leaving the estate to Hazel Turner.

When Whelan passed away in 2012, the charities sued Turner claiming she created the second will fraudulently. Since she is now 95-years-old and incapacitated due to Alzheimer’s, her son is fighting the battle on her behalf.

The Turner side of the story is that Whelan and Turner were childhood friends and continued that friendship until Whelan passed away. According to this side, the 1982 will reflected the wishes of Whelan’s husband with whom she created mirror wills.

The husband wanted to support the charities, but when he passed away in 1989 Mrs. Whelan changed her mind and wanted to take care of her friend.

The charities, on the other hand, claim that the 1999 will was created under suspicious circumstances. They claim that Whelan may not have been competent at the time. The charities also claim that the alleged witnesses to the 1999 will have no recollection of seeing Whelan and that they thought they were witnessing a will for Mrs. Turner.

The Daily Mail has more on this story in “Charities in court battle with son of frail 95-year-old who 'tricked friend into signing over her £1.6million fortune in will'.”

The case has been taken under advisement by a court with a decision expected in the future. 

Reference: Daily Mail (Nov. 10, 2015) “Charities in court battle with son of frail 95-year-old who 'tricked friend into signing over her £1.6million fortune in will'.”

How To Avoid Leaving Behind Multiple Wills in California

Most people know that it is not ideal to die without leaving behind a will. However, fewer people understand that leaving behind multiple wills can also be a major concern in estate planning – and a problem that can derail even your best laid plans.

While there are limited circumstances in which multiple wills can be complimentary, useful, appropriate, and valid, such as when an individual has property in multiple countries and wills in each of those countries, multiple wills within the United States are almost never a good thing.

What Happens When There is More Than One Will?

It is normal to write multiple wills during your lifetime: you may change your mind about how to distribute your assets, your family dynamics may change, or your general life situation could change. In most cases, your most recent will document will contain a clause that revokes all past wills. However, in some instances, multiple wills are considered and contested in court, which can be a long, complicated, and expensive process.

Two existing wills could be pitted against each other in court if:

• The most recent will does not revoke past wills.
• The most recent will was not properly executed.
• The most recent will may have been wrongfully influenced by a beneficiary.
• The most recent will was written when the testator was not of sound mind.
• It is unclear which will is the most recent will.
• Multiple versions of the same will exist.

How to Avoid Contested or Challenged Wills

The solution to avoiding multiple wills is not to avoid ever updating or rewriting your will – you simply must be extremely careful about making clear which version of your will is most recent and which will is valid. A California will and trust lawyer can help you:

• Make certain your newest will revokes all other wills.
• Make certain your older wills are destroyed and/or voided.
• Make certain your will accurately reflects all of your wishes.
• Make certain your will is properly executed in all other ways.

Get Professional Legal Help For Your Last Will & Testament in California

At The Law Office of Janet Brewer, we take a number of steps to ensure that your will and other estate planning documents are valid under California law and that they will not be contested or challenged after your death. Even if you have multiple surviving wills at the time of your passing, we will draw up your will so that it is clear that all prior wills have been revoked.

Write your will with the help of an experienced Silicon Valley estate planner, and get peace of mind that your wishes will be heeded after your death. To learn more about drawing up a will in California, or to schedule your appointment with a CA estate planning attorney, please call The Law Office of Janet Brewer today: (650) 325-8276.

Photo: Markus Spiske / raumrot.com

International Estate Planning & Drafting Multiple Wills

You may have heard that it is always a mistake to have multiple wills – and this is true if you are a United States citizen who does not have foreign property or assets. However, this rule does not apply to those who may split their time between different countries and who may own property abroad. In fact, having multiple wills when you have ties to more than one country could be enormously beneficial to you and your beneficiaries.

Why Multiple Wills in Multiple Countries?

Very simply, all countries have differing laws when it comes to estate planning, inheritance, wills, and trusts. For example, while the United Kingdom has living trusts, France does not. If you only have one will, it is doubtful that all aspects of the document will be valid in both countries, or that the legal language in the document translates clearly. This could lead to a large number of legal complications, a lot of red tape, and possible double taxation. It could also mean that your wishes for your assets and your beneficiaries won’t come true despite your estate planning.

Finding an Estate Planning Expert Abroad

Even the very best international estate planning attorneys can’t possibly know all of the estate tax laws, property laws, and inheritance laws of hundreds of other countries. At The Law Office of Janet Brewer, we believe that the best solution to helping our international clients is connecting them with an experienced, knowledgeable estate planner in the country where they hold property or assets.

We are members of The Society of Trust and Estate Practitioners (STEP), an international organization of almost 20,000 estate planners in almost 100 different countries. All members are subject to an extensive code of professional conduct and ethical standards. When one of our clients needs international assistance, we use our STEP network to find a reliable, skilled, and qualified attorney, whether in South Africa, Italy, Bermuda, Israel, or Canada. We work closely with this international lawyer to make sure all aspects of your estate plan are complete, valid, clear, and legal. If more than one will is needed, both wills should compliment each other and contain careful coordination. It is absolutely vital that one will does not revoke the other.

International Estate Planning With Janet Brewer

We have assisted individuals with property in a wide range of countries make certain that their estate planning is complete, valid, and clear. To learn more about international estate planning in California, or to schedule a meeting with one of our skilled attorneys, please call The Law Office of Janet Brewer today: (650) 325-8276.