My appreciation of the importance of having a will has been reinforced by recent experiences. Even if you have a trust you still need a will. A will speaks at death to who inherits assets, other than non-probate assets including assets held in a trust. Without a will the laws of intestate succession apply to such assets. Not having a will can lead to unintended consequences.
In California, the general (preferred) rule is that a will must be in writing and be signed by the testator (will maker), some other person in the testator’s presence and by the testator’s direction, or by a conservator pursuant to a court order (Probate Code section 6110). Also, California law allows holographic (hand written) wills, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator. Holographic wills are useful where a person does not have the opportunity to sign a traditional (typed and witnessed) will.
Next, under the modern trend liberalizing will requirements, California allows other informal written expressions of testamentary intent subject to the clear and convincing evidence standard of proof (Probate Code section 6110(c)(2)). Evidence as to a decedent’s oral statements of testamentary intent can then be used as evidence towards proving that the informal written document should be trusted.
Recently a widow saw me whose husband had died pending the results of a mass toxic tort personal injury lawsuit. The personal injury law firm explained that the only way that the personal injury award would be payable to the decedent’s heirs is if a probate were opened and either letters testamentary (with a will) or letters of administration (without a will) were issued. The husband died without a will. The couple owned other assets that were held in trust or as joint tenancy and so belonged to the widow.
Unfortunately the injury settlement award might be characterized as the decedent’s separate property. Without a will, as the decedent’s separate property, the award would go one-half to the widow and one-half to the decedent’s blood nieces and nephews. Had the deceased husband simply left even a handwritten, signed will leaving his estate to his wife then the widow would have inherited all her husband’s award.
Another example is a decedent who died prior to receiving distribution of an inheritance from his mother who predeceased him by a few months. In that case the decedent’s pour over will applied and the decedent’s trust received the inheritance.
In California a will is required to be probated if the decedent’s estate has a gross value in excess of one-hundred, sixty-six thousand, two-hundred, and fifty dollars ($166,250), except when such assets are left to a surviving spouse or to a registered domestic partner. Owning real property usually means that one’s estate exceeds the probate threshold amount. Thus, many California residents who own real property transfer their assets into a trust to avoid probate.
A further example is a client whose deceased father died with title to his residence still in his name. Even though he had a trust, because of his disability, the father never got around to retitling the residence into his trust before he died. However, because the father had a so-called pour over will – i.e., a will that leaves assets to one’s trust – we were able to proceed with a “Heggstad petition” to confirm such assets as belonging to a trust is supported by the decedent’s pour over will because it leaves everything to his or her living trust. A Heggstad petition is much less expensive and complex than probate proceeding.
Everyone should have a will. It is not difficult to create and having a will can avoid unintended results. The foregoing discussion is not legal advice. Anyone confronting these issues should consult an attorney.
Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at Dennis@DennisFordhamLaw.com and 707-263-3235.