26 Mar A Cautionary Tale: Without a Will, Family Home Distributed Among 11 Relatives!
A few weeks ago I wrote about a family that terribly botched the transfer of their family home by doing a mixture of bad planning and no planning.
- They didn’t plan for the unlikely possibility that a daughter may predecease her parent.
- They held title to the family home in an ill-conceived joint tenancy.
The third mistake happened after Mother’s untimely death
After the operation of the joint tenancy, Great-Grandmother owned the family home completely on her own. Assuming she still had at least most of her marbles left, she could still have determined to whom the home should have passed after her death. All she needed to do was a very simple will, which she could have done completely for free.
Since Great-Grandmother did not prepare a will before she died, her estate passed according to “intestate succession”. “Intestate” means to die without a will, and “succession” is the process of transferring a person’s estate after he or she dies. In this case, Great-Grandmother actually survived two of her children. Those two children’s children take over their deceased parents’ shares in the succession process. So Great-Grandmother’s estate passed in six shares, like this:
- Four shares went to Great-Grandmother’s four living children;
- One share went to the three children of Great-Grandmother’s predeceased son;
- One share went to the four children of Great-Grandmother’s predeceased daughter.
Eleven farflung relatives are now accidentally the proud co-owners of some very valuable Walnut Creek real estate. Great-Grandmother essentially ceded control of how her estate should be distributed when she didn’t do a will.
A holographic will is valid
One can always do a will in his or her own handwriting, and it’s perfectly valid (and free, apart from the cost of the paper). Such a “holographic” will is valid if: (1) it is signed by the person who wrote it, and (2) the “material” portions (the important portions of the will that say who gets stuff) are in that person’s handwriting. It doesn’t even need to be witnessed. Of course there are some standard provisions that make carrying out a will’s terms much easier once it hits the probate court, and a person writing his or her own holographic will might not know to include these provisions. But at least Great-Grandmother’s testamentary intent would have been possible to implement.
The person on my side of the table usually prefers presenting for probate a full-featured will with all those standard provisions in it so that no heroics are needed in order to get the will accepted by the probate court when the time arises. So perhaps a better method of preparing a free will is to use the form provided by the California State Bar at http://www.calbar.ca.gov/Portals/0/documents/publications/Will-Form.pdf.
The person using it only needs to fill it out by hand and sign it in the presence of two witnesses. You can ignore the strangeness of the form’s design – I’ve probated wills written on this form several times and I can attest to the fact that it works just the way it is supposed to, even though it isn’t very pretty–again, it’s completely free.
This relatively straightforward step would have prevented the transfer of the family home to 11 farflung relatives – many of whom daughter has never even met!