Where There’s a Will, Is There a Pay?
Writing your own will can be risky business.
Take the case of Frank Blain, a California man who died in 1953. A court acknowledged that he wanted to leave his $115,000 estate to his niece and other friends and relatives, but then the court awarded all of it instead to his granddaughter. Blain had not mentioned his granddaughter in his will, the court said, because he thought that she had inherited sufficient property from other relatives.
Crucial Mistake
You see, Blain prepared a holographic (handwritten) will, which, in this case, did not stand up in court. It was dated, written and signed in Blain’s own hand, as required under the law, then and now. But the failure to mention his granddaughter was a crucial mistake.
Under the law at the time, any children and the children of any deceased children--as was the case with Blain’s granddaughter--were entitled to inherit their fair share unless the will indicated that they were being left out on purpose.
The law is substantially the same today, although recent changes in the probate code have made it somewhat easier to prove that someone intended to omit a child from a will by presenting evidence of other arrangements that may have been made for the child.
Saved $10, Lost $100,000
As the court observed in Blain’s case, he “knew just enough about probate law to think that he could safely prepare his own will; by acting for himself, he saved an attorney’s fee amounting to perhaps $10 and caused a loss to his intended (heirs) of well over a $100,000. A little learning is a dangerous thing.”
If you insist on writing your own holographic will, you should know that they are valid in California but not in some other states. They must be entirely written (that means no typewriting or printing at all), dated and signed in your own handwriting.
But beware. Such wills are frequently the subject of legal challenges and are fraught with pitfalls--just as Blain’s niece and his other intended heirs discovered.
If you want the service of a lawyer, you’re not likely to get one to prepare a will in 1985 for as little as $10, but many low-cost legal clinics will prepare a simple will for a reasonable fee, perhaps less than $150.
In many circumstances, your best bet is to consult a lawyer who specializes in estate planning. For example, if you have a relatively large estate, complicated family affairs, want to divvy up your property among a variety of friends and relatives, need tax advice about your estate or simply don’t want to risk making an error that could transfer your property to a child you can’t stand, see an estate-planning specialist.
Fill in the Blanks
The state legislature has offered some assistance to those who don’t want to pay a lawyer to write their will; in 1982, California was the first state to adopt a form for a statutory will. It is a fill-in-the-blanks document that reduces the need for legal counsel.
As explained in a California State Bar pamphlet: “The statutory will lets you leave your property to a surviving spouse, to your children or grandchildren or to other legal heirs. The form will also allows you to make a cash gift to another person or charity, to name an executor and to name a guardian for minor children.”
All you have to do is fill in the boxes. But you’d better be sure that you understand the meaning of each box. If you check the wrong one, try to give the same property to two different heirs or forget to check a box, your estate will be distributed as if you did not make a will. Any words that you add to the form will be disregarded. If you feel industrious, you can read the full text of what the form represents in the state Probate Code, beginning at Section 6240.
Self-Help Guides
Or, if you’d prefer, you can consult a lawyer simply to explain the form to you. That way, you won’t have to pay the higher cost of having a lawyer write the will.
Nolo Press, a self-help law-book publisher in San Francisco, publishes an estate-planning guide with copies of the forms along with full explanations for their use.
The form will comes in two versions, with and without a standard trust. The trust form allows you to set aside your estate for support and education of your children until they reach the age of 21.
Both versions of the form can be obtained from the California State Bar for a $1 fee. Send a self-addressed, stamped, business-size envelope to Will Forms, State Bar of California, P. O. Box 411, San Francisco 94101. Be sure to say whether you want the form with or without the trust provision. The forms are also sold in stationery stores.
The State Bar also publishes a free pamphlet entitled “Do I Need a Will?” available from its San Francisco office, 555 Franklin St., where the ZIP code is 94102.
Legal Brief
It is not always wise to leave the original of your will in your own safe deposit box--unless a co-signer on your box will be able to open it after you die. Otherwise, a court order might be necessary to open it to find your will. You may want to have your lawyer or executor keep the original. But you should also keep a copy, which indicates where the original is being held.
Attorney Jeffrey S. Klein, a member of The Times’ corporate legal staff, cannot answer mail personally but will respond in this column to questions of general interest about the law. Do not telephone. Write to Legal View, You section, The Times, Times Mirror Square, Los Angeles 90053.
