Wednesday, October 22, 2008

Do I need a new will when I move?

This is a common question when moving from one state to another. Two points: (a) the state probate laws of the various states (Louisiana excepted) are very similar and (b) most states have an express provision accepting for probate wills created in accordance with the laws of other states. Here is a sample of state probate laws that accept wills created in other states.If I did not list your state and you wish for me to give it a look, please just leave a comment. International wills are another issue. In order for a last will executed in another country to admitted into probate in the United States, your state must have passed a version of the Uniform International Wills Act (part 10 of the Uniform Probate Code) and the international will must meet the requirements of that act. Note in particular the requirement for two witnesses.

The® Last Will and Testament Form is a fast and economical solutions for those wishing to create a simple will ($13.99, free trial).

Monday, October 13, 2008

What Happens When A Devisee Predeceases The Testator?

A common question from persons creating their own last will is what happens if one of the beneficiaries named in my last will predeceases me? The most straight forward way to address this situation is to name contingent beneficiaries who take whenever a devise predeceases you. However, most basic last wills do not name contingent beneficiaries. In the case where a devise predeceases the testator, what happens is a matter of state law. The probate codes of many states have specific statutes addressing the situation called antilapse statutes.

Florida Probate Code §732.603 Antilapse; deceased devisee; class gifts is one such statute (often referred to as "antilapse" statutes). It provides two alternate results. Under Section 732.603(a), if the devisee who died is a grandparent or lineal descendant of a grandparent of the testator, then "the descendants of the devisee * * * take per stirpes in place of the deceased devisee or beneficiary." Let's look at an example to see how that works. Larry leaves his first cousin Sam $50,000. Sam has three children. Sam dies in June of 2008 and Larry in October, 2008. What happens to the $50k? As Larry and Sam are lineal descendants of the the same grandparent, under Section 732.603(a), the $50k shall be split evenly between Sam's three children. What if Sam is Larry's unrelated hunting buddy and instead of a close cousin? Under Section 732.603(b), the devise to Sam then lapses and the $50k specific bequest to Sam goes back into the estate to be distributed with the residuary of the estate as set forth in the last will.

Here is a list of links to antilapse statutes from selected other states:

Saturday, October 11, 2008

Devise By Written List

It's an annual routine to revise my mother's will around Christmas time. What's her greatest concern? Who gets her stuff--jewelry, furniture, personal mementos, etc. It's a long list of specific directions and her wishes change continually. Do I have to draw up a new last will with witnesses and notary each year just so mom can change which granddaughter gets the duck painting hanging in the basement? Luckily, 'no' as we are residents of Missouri.

Section 2‑513 of the Uniform Probate Code allows the maker of a last will to device certain types of tangible personal property (such as clothing, furniture and other personal effects but NOT money) by separate written list not prepared with the same formalities as a standard last will. The exact language of Section 2-513 is as follows:
Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect on the dispositions made by the will.
Roughly half the states including Missouri follow Uniform Probate Code Section 2‑513. Here is a survey of all US states indicating which allow for devise by separate written list. And here is a sample written list and another sample list.

These lists can be draw up before or after the last will. No witness is required; however, the testator must sign and date it. Further, the list can be amended simply by drawing up a new list and, again, having the testator sign and date it. I gave my mother an electronic copy of her device of personal property by written list so that she can alter it on her own whenever she pleases!

Friday, October 10, 2008

Holographic Wills

A holographic will is one in the testator's own handwriting that does not comply with the normal statutory requirements for a will (such as having two witnesses). Here is California's provision for holographic wills:
A will that does not comply with Section 6110 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.
California Probate Code Section 6111. The majority of states recognize holographic wills; however, a minority including Florida do not. See whether your state accepts holographic wills.

Personally, I just don't see the point to holographic wills in the age of the internet. In bygone days, it was a way for people of modest means to make a simple declaration of intention for disposition of their assets on death. But purchasing a will online for less than $20, to my mind, is a much better solution for a simple will than attempting to write out in one's own handwriting a valid and comprehensible document. Printed forms, especially interactive online forms, stand a better chance of correctly expressing the desire of the testator than a document completely in the individual's own handwriting. Why? Without the aid of a computer program and template language, the testator attempting to draft his or her own will might encounter difficulty plainly organizing beneficiaries designations.

In these difficult financial times, one can only expect more individuals to be seeking alternatives to expending money to pay lawyers. My suggestion is to look for a legal forms company that has been in business for several years. Check the BBB for complaints. Also, look for samples of the product online before purchase.

Thursday, October 9, 2008

Contesting A Last Will

I am often asked by family members about the grounds for contesting a last will. This is especially so for offspring of the decedent who expected to be, but were not, beneficiaries under the will presented for probate. The grounds for contesting a will are limited and, in most cases, expensive to pursue. So get out your checkbook before picking up the phone to call your lawyer.

The easy case is one where there are errors in the required formalities of execution such as the failure to have to two witnesses to the execution of the last will. But those are unusual cases. The more typical grounds for contesting a will are either undue influence or lack of required mental capacity. "Courts require substantial evidence to upset a testator's written will. [Factors of undue influence listed by courts are as follows]: (1) unnatural disposition, (2) opportunity to exert the undue influence, (3) susceptibili­ty, and (4) activity of beneficiaries in procuring the will." Link. "Unnatural disposition" is a case where an individual who is not a relative of the deceased becomes a substantial beneficiary. Susceptibility involves cases where the decedent was more easily influenced at the time the will was executed due to age or health. Activities supporting a claim of undue influence can be such things as the beneficiary selecting the attorney to draw up the new will and / or physically taking the decedent to the attorney's office to execute the new will. No one factor controls undue influence cases. The courts look at the totality of the circumstances in making the determination.

Another common ground for contesting a last will is the decedent lacked testamentary capacity at the time the will was executed. All adults are presumed to possess testamentary capacity so the burden is on the party challenging the will. "To have testamentary capacity, the author of the will must understand the nature of making a will, have a general idea of what he/she possesses, and know who are members of the immediate family or other natural objects of his/her bounty." Link. As determining mental capacity is a medical issue, this is the type of case is susceptible to expert testimony. See example of an psychiatrist specializing in these cases. See also attorney article on generally on challenging last wills.

Can last wills be successfully challenged? Yes but it is a very difficult case to make.