Tillem & McNichol

Len Tillem and Rosie McNichol

Dear Len & Rosie,

I have some thought and worries about wills and probate. I have two pieces of property, each valued at $600,000 or so.

I made out a will this year, copying most everything from a book at the library. Is my will good? I have enclosed a copy of my will and my property tax bills.

Lester

Dear Lester,

We read the photocopy of the will you sent with your letter. Your will is entirely typewritten, except for your signature at the bottom of the page. It has not been witnessed.

This means that your homemade will won’t work. People like you make lawyers a lot of money.

There are two types of wills: attested wills, and holographic wills.

Attested, or witnessed wills, are not valid unless the signature of the person making the will is witnessed by two adult witnesses who do not inherit anything under the will.

Holographic wills do not need to be witnessed, but they must be handwritten by the person making the will.

California law recognizes holographic wills, because as it is much more difficult to forge an entire handwritten document instead of just an unwitnessed signature.

Even if your will was validly executed, there are other problems with it, too many to go into in this space.

We are also sure that you do not want all of our readers looking at your will. However, your will raises an important issue. Your will doesn’t give away your entire estate. There are a number of specified gifts, but there’s no “residue” clause giving away what’s left, if anything, after the specific gifts are fulfilled.

There is one saving grace.

Your real estate is titled in joint tenancy with your wife, according to the property tax bills you sent us. When one of you dies, the surviving spouse will own both properties without going through probate.

If you make your own will, you are taking a big risk.

Wills are very formal instruments and must be properly executed to be valid. It is very easy to make mistakes in drafting wills.

Look at what you did. You do not want your loved ones to have problems probating your estate just because you wanted to save a few bucks. Wills are also cheap, and your attorney will even keep your wills for safekeeping for no charge, just on the chance he or she will pick up an nice fat probate after you die.

You should see an estate planning attorney about making a new will, and you should also consider a revocable trust.

Probate will take more time and cost more money than it would to administer a trust after your death. The statutory attorney fees on your real property would be $25,000, and that does not count the rest of the assets you own.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 707-996-4505, or at LenTillem.com. Len has a new video channel on YouTube.

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