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California Estate Planning Attorney: Guide to Holographic Wills

California Estate planning attorney discusses problems with writing own will (holographic)

“Do it Yourself” Documents

As a California estate planning attorney, I cringe at the thought of clients creating their own estate planning documents. There’s just too many things that can go wrong when you try to “do it yourself.” Holographic wills are written entirely in the handwriting of the testator (no typewritten or pre-printed portions). These wills are legal in California so long as the “material provisions” are in the handwriting of the testator and the will is signed by the testator. The will doesn’t need to be witnessed or dated (although dating it is a good idea, especially if there’s an alternative will in existence).

California estate planning attorney fees are not cheap. And, some people think their estates are “simple,” so there’s no reason to pay the high fees for a California estate planning attorney to draft up a comprehensive estate planning package. Can you really “do it yourself?” Most people who write their own holographic wills do so improperly with a high potential of making costly mistakes. Even worse. The testator has passed by the time these mistakes are discovered, leaving the grieving family to deal with the loss and administrative problems. Let’s look at all the problems that can arise when clients attempt to create holographic wills without the assistance of a California estate planning attorney.

Common Problems of Failing to Hire California Estate Planning Attorney

California-Estate-Planning-Attorney-Do-It-YourselfAdemption

Holographic wills typically leave certain assets to certain people. The problem of “ademption” comes into play when assets bequeathed in the will are no longer owned by the testator at the time of death. The result? The intended beneficiary may be out of luck and receive nothing from the estate if the “adeemed” bequest was the only gift. What happens when you gift your house, but then sell and move to another residence? Again, the beneficiary is out of luck. A California estate planning attorney can draft documents to handle the potential problems associated with ademption and other common legal concerns.

Failure to Name Executor

Executors are the person(s) named to carry out your estate wishes when you pass. Often, a holographic will contains the beneficiaries, but not the executor.  If there’s no named executor, the court will intervene and appoint an administrator to perform the duties of the executor, who may very well not be the person the testator would have chosen. Even if you’ve managed to name an executor, handwritten wills almost always fail to waive the requirement that an executor post a surety bond to protect the beneficiaries of the estate against gross mismanagement of assets. A bond is costly and is a requirement in California. This cost is normally borne by the estate, leaving less to distribute to the beneficiaries. A California estate planning attorney knows to include will provisions that avoid the bond requirement, thereby saving the estate costs.

Failure to Name Contingent Beneficiaries

The person(s) named in the will to receive assets are called beneficiaries. Holographic wills commonly fail to mention alternate or contingent beneficiaries that should take in the estate should the initial beneficiary predecease the testator. If the testator does not name an alternate beneficiary and the named beneficiary dies before the testator, then the gift to the beneficiary will lapse and instead shall pass according to the laws of intestate succession.

Pulling it Together

The fee paid to a California estate planning attorney for drafting a comprehensive estate planning package is minimal compared to the havoc that preparing your own documents can cause. Above are just some examples of the potential problems associated with holographic wills.  Sometimes, however, holographic codicils are used as part of an estate plan to supplement the will in regards to specific personal property.  Again, however, this not something you should do yourself.  The best way to avoid probate and have your loved ones get your assets is to hire a California estate planning attorney for assistance.

About Sean Hanley

Practicing law since 2007, Sean specializes in the ever-changing laws related to real estate, business and estate planning. Embracing technology with a focus on personalized service, he understands the challenges of living and thriving in Silicon Valley. Tapping into his education in economics and business administration, Sean also serves on the non-profit Willow Glen Business Association.

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