Posted On: Jun 02, 2014, Posted By: Velasco Law Group
If you die without an estate plan, the State of California has one for you
California’s laws of intestate succession provide for distribution of a decedent’s estate when a person dies without a will. The estate includes all real property, bank accounts, investments, business interests, and personal effects held in the decedent’s name and for which there is no trust, joint tenant, or beneficiary designation. Those who take under intestate succession are known as heirs, while those named in a will or trust are beneficiaries. The first line of heirs includes the surviving spouse and/or issue. The term issue includes all lineal descendants such as children and grandchildren. If the decedent was not survived by a spouse or issue, the estate passes to the parents, unless a portion of the estate came from a predeceased spouse, in which case the heirs of that spouse may be entitled to a portion of the estate. If the parents are predeceased, then the estate passes to the issue of parents (the decedent’s siblings). The provisions for intestate succession carry on to grandparents and issue of grandparents (cousins). Everyone has heirs.
In order to avoid the often undesired consequences of intestate succession, a person might dash off a quick handwritten will before a vacation, before surgery, or in the middle of the night when a nagging thought won’t go away. As a quick fix, a holographic (handwritten) will can provide some comfort if there is no time to create a comprehensive estate plan with an attorney. Unlike a typed will, a holographic will need not be witnessed. A holographic will should be dated (or the date of execution proven). It is valid if the signature and material provisions are in the handwriting of the testator. So a signed note on a cocktail napkin can be a will. Prior to admission to probate, a holographic will must be proven by someone who is familiar with the testator’s handwriting.
Even if the handwriting is legible, the testator’s intent may be difficult to determine. What may have been perfectly clear in the testator’s mind may be subject to different interpretations with competing interests. Often, holographic wills provide for disposition of property that can’t be readily identified: a favorite car, an account at a closed bank, or securities that no longer exist.
In other cases, the beneficiaries are not easily ascertainable. The estate must report to the California Attorney General if a will includes a charitable trust but not a specifically identifiable charity. Gifts to minors nearly always fail to provide how the gift should be administered. In the absence of such a provision, the court may order that the minor’s gift be held in a blocked account or be subject to court-supervised guardianship. Do-it-yourself testators can’t seem to resist providing for their pets in ways that are impossible to administer.
Holographic wills tend to omit key provisions such as nomination of alternate executors and waiver of bond. An “executor” is the term used for a person (or entity) named in a will; an “administrator” is appointed by the court in the absence of a nomination or in an intestate estate; and “personal representative” refers to either an executor or administrator. Default provisions of California law include the order of priority for personal representatives if the named executor is or becomes unable to act. Unless the will specifically waives bond, even if an executor is named, the court will require that a bond be posted to guarantee that personal representative’s faithful performance of duties. The cost of the bond premium adds to the expense of probate administration.
Obviously, there is no substitute for a comprehensive estate plan drafted by an attorney after careful consideration of a testator’s wishes. In an emergency, an imperfect alternative to a holographic will is the California Statutory Will, a fill-in-the-blank basic will form provided on the Trust and Estate Section of the State Bar of California website. http://trustslaw.calbar.ca.gov/Publications/StatuoryWillForm.aspx
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