The WAY to WOW Shows
Informal Wills
November 25, 2024
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[0:00] [Music] and where are you going what do you [Music] want hello and welcome to trust and Estates weekly I'm your host Kevin bemel and we are here every Monday at 10: a.m. Pacific time to talk about all matters relating to the to the um creation Administration of of trusts and and Estates uh both from your own personal planning

[0:36] standpoint as well as uh helping professionals like me I'm a professional fiduciary uh deal with clients and help other people out in their estate planning the administration of their trusts and Estates Etc so uh today is a a topic that um unfortunately um I'm having to deal with in in one of my cases and so I decided to explore it a little bit and increase my own knowledge about it and then share it with you this is really just an overview of what I

[1:14] call informal Wills so I've I've talked on a number of occasions about the various types of documents that are used uh for Estate Planning and succession namely uh Will's trusts um designations of beneficiaries on death and all of these documents um these days are very well established although they differ from state to state um they've been used for a long long time and so

[1:49] there's not a lot of mystery surrounding them and and if they're done correctly they're they're very hard to challenge and and they're part of wellestablished system now by the way that does not mean that just because a document is is drafted correctly that it's legitimate so um I'm I'm dealing with a case right now where it appears that uh a a trust that on its face looks legitimate um is is actually was actually fraudulently uh drawn up um it was

[2:26] created um after the deant passed away um and her signature was was forged so excuse me so um but but in general um a properly um created trust a properly drawn will you're not going to have a whole lot of problems specifically with that that instrument now you may have uh you know people may still challenge it um anyway because you know they they want some of the money or whatever um

[3:01] but but in any event those are well established so informal Wills um and and and to the best of my knowledge there's no such thing as an informal trust um but an informal will is one that's created sort of outside the regular requirements for a written will okay and and as such um they are far more likely to be challenged um and they they create a far less certain path for for succession

[3:40] meaning how your property is going to be distributed uh when when you die so I've got four examples that I'm going to talk about now as we've mentioned many times before on this show uh probate an estate trust law differs state by state and so I'm GNA first talk about just some general four generally about these four types and then after that I'm going to go into some more details with respect to California which is the jurisdiction

[4:15] in which I live although I practice Nationwide to give you an example of how things can differ state by state okay and so let me start this out by saying this of course is not not legal advice on my part I am not a lawyer I'm just giving you some general education on these um on these types of informal wills and if you are dealing with them you absolutely need to get competent legal advice on them they're they're very difficult um to deal with

[4:52] and there's really just like there's no such thing as so-called settled science there's really oftentimes no such thing as settled law so um the Law changes over time the approach F first of all legislation can change um if something is is impacted by regulations as well regulations change and then how society and judges view certain things can also change over time and I'm going to talk more about that in the section when I talk about these these uh four inform

[5:30] Wills with respect to California so the first type of informal will is a is an oral will or what's called a non- cupi of will um now oral Wills um are literally Millennia old uh in fact um I recall um learning about them a little bit when I st was studying the talmud it was uh I was trying to remember so so I looked it up yesterday in uh tractate Bava Basra um in uh in

[6:05] the gamor it talks you know quite a bit about um the laws of inheritance and such and I believe it there there's a section in there that talks about you know what happens if if someone is um on their deathbed and you know either hasn't made a will and wants to or or you know want to you know give certain property away to a certain person how how all that works so the idea of a of an oral will has been around for a long

[6:40] long time now uh there's a generally speaking um It's Made verbally hence the term oral will but in front of witnesses okay now they don't necessarily have to be you know designated you're a witness you're a witness it could be there's a doctor and a nurse there along with maybe family members whoever happens to be there um it just that there has to be you know there have to be people there who hear what the testator the person making the will um you know has to say that's

[7:18] number one number two gener again generally speaking it it it's it's during the the the the testator knows that he's dying um and so it's made in the you know sort of final moments of his life and and as such um death death is imminent and so um this we see this com this we see this idea in other um areas of the law so number one um there's

[7:54] there's a presumption that it's it's uh truth okay so um there's something called a dying declaration where somebody knows they're dying um there's you know they know there's there's no there's let's say they've been shot they know there's no chance they're going to survive um and maybe they witnessed a crime or were part of a crime um there's no way they're not going to make it to get into court there they they can't be deposed uh where there's a court reporter taking it down um and they they make a statement

[8:29] maybe to a police officer or somebody else who's on the scene and the presumption is that since they knew they were dying what they're telling is is the truth okay so there's an aspect of that here that in our final moments you know what we what we really know what we really want that's what we're talking about we're not going to waste our time you know lying okay now uh as far as validity is concerned there are are jurisdictions um that that recognize them um however those there's a it's

[9:06] it's a small number okay and almost they're almost always subject to very strict conditions such as um the testor must be in imminent Peril Peril of death okay um the the witnesses write down what the testator said within a certain specific time frame and um it applies um to personal property um but not to uh real estate real property okay so you know my car my coin collection my

[9:42] checking account those kind of things those are that's personal property as opposed to my house my the office building I own for my business that sort of thing which is real estate okay now the major limitation on oral Wills is of course um there's often times no tangible proof okay and so if there's a written will and somebody comes along and says well you know right before he died you know my my dad made an oral will and and

[10:17] that oral will supersedes the written will um you know in most cases the court will probably look at that with a great deal of skepticism unless unless unless there's you know real tangible proof that you know that the oral will was made and it's in a jurisdiction where such a will will even be considered okay so that's that's the first type an oral will second type is what's called a holographic will so it's a it's a um it's a partially non-written will it's

[10:53] not a formally written will um and generally speaking um a holographic will uh is is a handwritten will literally handwritten not necessarily incursive it can be printed but as opposed to uh typed or printed okay so if word processed um if I will is is you know entirely word processed so um in that that may not qualify e um if let's say you know um wanted to draft a will

[11:31] and I word processed a will um but but that's but that's it and then and then I signed it okay that may not qualify as a holographic will whereas if I hand wrote it out and signed it then it might excuse me it might be uh valid as a holographic will again that varies from jurisdiction to jurisdiction okay um some some jurisdictions will allow these holographic Wills even if they're not formalized and and that's

[12:06] typically the idea someone maybe someone is is going away on a trip it's it may be to a dangerous place and they don't have time to sit down with their lawyer and so they handr write out a will and sign it um it doesn't require Witnesses typically um and so and they you know they leave it behind in an envelope that says you know to be opened upon my death okay and and and that's what um you know that that type of will may be valid okay now

[12:42] um a holographic will doesn't necessarily have to supersede a a valid written will per se it could be it could supplement that written will Okay so that um it it's there for clarifying purposes as opposed to be um you know the sole document describing the decedent intentions okay and and and so you know perhaps um uh

[13:18] you know the the decedent has um let's say um three checking accounts um and and um and and he and he puts in there you know they to go to my heirs okay but he doesn't say how they're to be divided up are they to be divided up a third a third a third you know add them all together and divide the amount up by a third each is one to go to each one of them how is that going to work so you might you know a testator might do a holographic will explaining um you know that that this is to explain in my will

[13:53] that I want you know the value of all three accounts added up together and each of my um beneficiaries is to get onethird of the total amount or beneficiary a gets account number one b gets two and C gets three how how they could do it to to um clarify something um you know in a in a valid will okay so that's number two a holographic will number three and this is not um I mean this is a type of will but it's more a circumstance is statuto

[14:29] exceptions for soldiers Sailors Marines in other words people in the military okay so in in some Juris again some jurisdictions you can have U members of the Armed Forces on active duty and they can make uh informal or even oral Wills um and they might be uh upheld in that jurisdiction because of the unique circumstances so I know when when I was in the military and I was scheduled to be deployed to um

[15:04] I think it was Afghanistan I I I I don't recall now the deployment was canceled because my my wife at the time was diagnosed with cancer but part of the process of getting ready to make that deployment was that I had to have a will drawn up okay um and and the reason is because that um even though I'm not a combatant um you know non-combatants are killed in combat zones um I don't want to say all the time but they certainly are um and and so the military doesn't want to have

[15:40] a chaotic situation happen with respect to um you know what what's going to happen with a service member's property if that service member is killed okay now um if for some reason a service member is deployed um and and and and there in combat and they they you know didn't draft a will so they might draft a holographic will or they might tell you know a a buddy hey you know I don't have any will so I want to give you my my you know last will in Testament you

[16:15] know orally here and I'm counting on you to to see to it that you know my wishes are fulfilled okay so um again it it will vary from jurisdiction to jur jurisdiction the the circumstances will matter the the um um and and there may be specific rules regarding timing and applicability okay all of those come into play okay so you know this is this is something that you know a service member may end up relying on only because of the of of unfortunate

[16:51] circumstances but of course always better to take care of these things before you're deployed and by the way there's training accidents in the military up until I think just a few years ago um the number of deaths from training accidents was higher than the number of deaths due to combat so I think recently that that's that that switched combat deaths are now actually a little bit higher over the the period of the global war on terrorism um but but it shows you that you know um just

[17:26] you know being in the military is a dangerous occupation and so you know one is well advised to to have an estate plan and make sure all the documents are done and not rely on these kinds of informal Wills now um with the Advent of uh video and recording devices on our phones and all of that you know inevitably um the concept of a video or a audio recorded will has come up and and and and this this is this is

[18:01] something well of course video and audio recording is not new the accessibility to it is is relatively new since the Advent of smartphones and so now some jurisdictions are starting to look at you know do we um do we place validity on a video or an audio will okay now if you watch television I think it was in the 70s there were various shows where they would have you know people would be

[18:37] called to the lawyer's office for the reading of the will and it turned out that the deedon had made a videotaped will um and and I get you know because of how it was done the lawyer it you know the lawyer had set it up as uh part of a valid um estate plan and so they were they were held to be valid now by the way I don't know if back then you know that was legally the case but certainly in the context of a television show you know it it made for an interesting situation okay so um you know like anything um video and

[19:15] audio recorded Wills um it's going to depend on you know what the person said um what the circumstances were in which the will was done and what are the rules if any about them in a particular jurisdiction now that jurisdiction typically is going to be a state because again it's state law that covers these types of issues and so you know if you're considering this this type of instrument so then again very well advised to talk to an estate planning

[19:50] attorney and find out what are the rules in the state in which you live maybe you know you can you can you can do a a video or audio recording and and maybe it's valid as a supplement to an otherwise valid will or trust okay to to impress upon your beneficiaries um your your wishes um and and you know for example maybe you you are you know giving them some money and and you want them to continue with the the type of charitable work that you did and it's one thing to put

[20:26] these things on paper it's another thing to to make a a video uh plea if you will um to to your to your heirs to the beneficiaries under your will okay and so maybe as you know as supplemental um you know indication of your wishes maybe it would have some validity again that that that all deals with you know the jurisdiction in in which you live now having said all of these things okay I want to repeat something and that is that by their nature these are much more

[21:04] likely to be challenged than a conventional will a conventional trust okay and so uh this is why legal advice is so important unless you are in some sort of emergent situation and and you know it's it's you know it's this or nothing and so you're maybe you do it because you figure okay you know if it gets you know discounted by the court I'm no worse off than I would have been if I hadn't done it at all and so I'll I'll give it a shot I'll you know I'm I'm I'm

[21:40] in combat with my buddy we're we're going to be heading into battle in uh you know in 20 minutes and and you know something has changed or or I I realized I knew my will whatever so you're so you know you you you go from that perspective okay so that's that's an overview of for now what I'm what I'm want to do next or I'm going to do next is talk about California specifically so you can see how a particular State deals with these uh four types of informal Wills okay now the state where you live

[22:17] may very well be different or you may not live in the United States I know I have viewers in in for sure in Africa um maybe in in Asia Europe whatever South America America um so how these are handled in your country would not necessarily be the same as as they are uh here in the United States especially here in California okay so so you know Lo local advice is is crucial in all of these all right so um in in California so the recognition of non-written Wills

[22:54] is limited and there are certain strict guidelines L and I'm going to go through them now um start with oral Wills non-pi of Wills so they are not recognized in California so the California probate code requires that a will be in writing even if it's made in extreme circumstances so if you're in that Foxhole you know the classic Foxhole right and you realize you did not make a will you know a last will in Testament an oral statement to your budy is if

[23:29] you're a Californian is not going to help however you may be able to write down your will and make a holographic will which is the next one and that may be upheld okay so in California um holographic Wills are recognized I'm dealing I'm dealing with a case right now where someone's trying to get what they consider to be a holographic will recognized okay here are the requirements now these are the legal requirements then I'm going to talk about this afterwards I'm going to talk about how this may be changing

[24:05] afterwards so first of all it must be entirely handwritten meaning if it's typed or word processed I don't know does anybody have a typewriter anymore I don't but if it's if it's word processed in theory that is not a valid holographic will in California excuse me okay it must be signed by the testator the person making the will okay the the o ending of a word okay is the doer the person making the will as as opposed to the E ending of the word the testate is the one

[24:41] receiving the action so the SS I guess would be the testes okay it must clearly indicate testamentary intent I.E there should be some kind of language saying this is my last will and testament or this is my last will or this will supersedes all other Wills made previously or some something like that you know it's not enough just to say I hereby divide up my property as follows okay finally it does not need to be witnessed but it must meet all the other

[25:18] legal requirements to be valid okay now here's the thing re more recently um although the law has not changed judges have begun to relax the judges here in California have begun to relax the requirements for holographic Wills okay and so this is causing a lot of confusion and uh a a lot of um

[25:53] opportunism on the part of people claiming to be an heir under uh what they purport to be a holographic will now this lack of clarity you you may on the one hand say well this is good because the courts are are are you know looking to um help more people well in this case for everyone they help there's probably someone being hurt okay first of all if an estate has to defend an action

[26:28] against a holographic will that's an expense to the estate um number one number two um it does like I say incentivize people to to cook up what previously would have been clearly understood not to be a holographic will just to try and essentially blackmail the estate into giving them something to go away so so whenever there's uncertainty in the legal system it encourages litigation

[27:05] and when litigation is encouraged number one it clogs up the courts number two it costs money to deal with and number three there's a whole emotional component to this which is it causes a lot of um uncertainty and Stress and Anxiety on the part of the people who are involved with the situation okay so um you know it it it will be interesting to see what happens uh not only with my case but with this issue in general and

[27:41] uh it may be that um there needs to be additional legislation here in California clarifying that that you know the the here to for Fairly clear requirements of a holographic will stand and that judges do not have the discretion to consider something to be a holographic will that is outside of those um those requirements or there may have to be a case and would probably have to be a large case where it was worthwhile to spend the money to defend

[28:17] it where a case maybe goes all the way up to the California Supreme Court and hopefully the Supreme Court would rule that judges are acting beyond their discretion and and causing a lot of needless litigation Etc and cost etc etc to bring California holographic Wills back within what were long a longstanding um understanding of their requirements under the law okay but the reality is here in California holographic Wills um are recognized and

[28:54] then it becomes a matter of a caseby casee uh situation okay um all right and by the way um a holographic will um you know may be challenged and of course one of the conditions under which a holographic will will be challenged since there it does not have to have any Witnesses is did the tested her have capacity to make the will when the will was made I.E did they understand what

[29:31] they were doing okay and and um could they even have written it down themselves um did they have you know like maybe it's written out in very clear print and yet the person had some kind of py right that did not allow them to write clearly was this really um the testor writing did the testator have the capacity even to write the will okay so this be becomes an important issue dealing with holographic Wills okay all right number three statutory exception

[30:06] for Soldiers and Sailors now like oral Wills California does not formally um recognize does not specifically um recognize them now um a a service member can uh create a holographic will and if that holographic will Falls with within the requirements for the State of California then that would be you know there at least tentatively could be recognized okay but merely because someone is in combat let's say Under

[30:41] Fire that does not change the fact that California does not recognize oral Wills okay so even under the the you know the very very extreme dire circumstances that a service member may find himself in uh he's he's he's gonna you know keep some penc pencil and paper or pen and paper and and and write down your holographic will if you want to have a chance at at having your wishes uh upheld by the court but don't don't rely on telling a buddy hey here's what I want to happen and then the Buddy shows up and well you know right before God

[31:18] forbid Kevin took a bullet this is what he told me California is almost for sure going to say yeah sorry oral Wills mean nothing here okay okay um with respect to video and digital Wills as of right now they're not specifically recognized or formly recognized I should say in California however um video audio and video recordings can be used to support the intent uh or the capacity um of of a testor um so that um

[31:56] for example in the case of a holographic will um maybe there's a there is a question of capacity and so a court May um you know may allow um audio you know a a an I mean a video will that shows that perhaps the testator was was uh competent did have the capacity to do this they may um you they may admit that as evidence in order to support that a holographic will is uh is in fact uh

[32:31] valid okay so um excuse me currently California is exploring the idea of an electronic will a will that there is no paper copy of it like a doc like a DocuSign will if you will no pun intended okay um but at least as of when I did my research um this the state of California did not uh formally recognize electronic Wills either H having said that um it wouldn't surprise me if um eventually they are

[33:08] recognized so so for example California um does not um uh allow um um online notary service um whereas for example um Arizona does if you remember I had a guest number of a number of months ago um let me get my let her get let me get your her name for you just because uh you know might as well give her a Shameless plug as I sometimes do where is my oh here we go um okay so let's see

[33:48] what was uh what was her name uh oh gosh I can't I can't oh yeah Suzanne fineberg okay so Suzanne does online uh notary services and in talking to her after the show I said hey you know this is great because if I've got you know a client who is is older and it's harder for them to get around um you know would love to have you know you available as a service provider and she said yeah it doesn't work in California California doesn't allow um online notary service so there are mobile

[34:24] notaries where the notary public will go to the person but at least as things are right now California does not allow online notary service now I do think um if I had to guess I would say that eventually is going to change um it's it's just it's so much more efficient um so much more convenient just like um online appearances in court so much more convenient so much less costly um California does allow those so I think at some point we will see these Innovations okay so the general requirements for a will

[35:01] in California for it to be valid are it has to be in writing typed printed or handwritten it has to be signed by the testator or another person at the testator's direction and in the testator's presence and it must be witnessed by at least two disinterested Witnesses who were present at the time of signing in other words they could say I saw the testator sign or I saw party a signed on behalf of the testator while the testator was there saying please sign on my behalf okay unless it's a holographic will okay so holographic

[35:38] will you don't need Witnesses but it has to be handwritten okay so here's the rub if you're in California and you do not have an estate plan while in an emergency you may rely on a holographic will for example that is not the best plan okay it's more likely it's it's much more likely to cause a challenge by other people it's possible that the court will not uphold um one of these informal Wills the holographic will and so you are adding a large layer of

[36:13] uncertainty into your estate plan so you are much much better advised to meet with a lawyer and and and set up a formal estate plan a formal will a trust whatever depending on the size of your estate okay and and um and um so you know these days because as I mentioned at the beginning um these documents are so standardized okay doing an estate plan is much less expensive uh than it than it used to be okay and so

[36:49] it won't necessarily cost you thousands of dollars to do a sound estate plan um depending on the size of your estate where you're located Etc you may be able to do it relatively less expensively and the fact of the matter is what the estate plan costs you to set up will almost for sure save your estate in Greater expense at the time it's administrated because there won't be the kind of uncertainty that leads to challenges that leads to fighting between errors or potential erors that

[37:25] that that cost the estate legal fees Administration fees that that clog up the court system etc etc etc okay so I talked again specifically about California because that's the jurisdiction in which I live your jurisdiction may be different Texas Florida you know Nebraska wherever you live um it's it would be you know very prudent to find these things out before they become a necessity or before you decide to rely on something not knowing at all if it's valid in your jurisdiction so that's that's the show

[38:02] for today and uh this of course you know we could go through case law um and and and look at nuances and and we'll save that for another day but this gives you at least the basics okay so um coming up this week tomorrow Tuesday at 10: a.m. Pacific time I'm going to be on business lessons from the military 10: a.m. Pacific um I'm going be talking about succeeding a failed leader and I'm going to be talking about uh Allan be at Gaza after archabald Murray so archabald Murray was

[38:40] not successful in in the Gaza campaign and Allen B replaced him and and stepping into a leadership position behind someone who's failed there are some some uh issue leadership issues that definitely need to be addressed and and we can learn these from the this particular situation and then on Wednesday at 10:00 a.m. normally would be my show people making money but since it's the day before Thanksgiving I'm going to be doing a special edition on Thanksgiving and I'm going to be uh talking about the history of the holiday as I always do and reading George

[39:16] Washington's Thanksgiving proclamation of 1789 so I invite you to join me for that originally I planned to do it on Thanksgiving Day itself and I said no you know people should be with their friends and families for the holiday and and uh you know not be tuning in so so um that will be on on Wednesday at 10: am Pacific time and then a week from today on Monday at 10: am will be um the next edition of trust and Estates weekly and my guest is Ka Jordan so um like me Ka

[39:56] is an independent fiduciary who also has a family office practice and uh I think you will be very very interested in in hearing a little bit about ka's story and how he approaches um the the estate Administration the trust Administration U side of of of our industry and so I invite you to tune in uh to to hear Kaa uh so I thank you very much for joining me today especially those of you who join me live always a pleasure um to be talking to you and I

[40:32] wish you a wonderful rest of the day and signing off as I always do Marie you are my bell courage at all times