The Spendthrift Clause

Question: My son is mired in debt, ex-wife, the whole 9 yards. I wish to leave him money in my estate but fear it will just go to his creditors. How do I leave something for my son in my last will? Or do I need a trust? Tom (Tampa, FL USA)

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Tom, you are facing a rather common situation in today's world. You are correct to be concerned about leaving a bequest to your son in your last will. The typical method for dealing with this situation is to create a testamentary trust in companion to your last will. The bequest to your son shall be made not directly to him but, rather, to the trust created for his benefit. The trick is to draft the trust in such a fashion that your son's creditors cannot reach the assets of the trust. This is generally done with a spendthrift clause, which "restrains both voluntary and involuntary transfer of a beneficiary’s interest". Florida follows the Uniform Trust Code in regard to the enforceability of spendthrift clauses against creditor collection actions. Of particular note in your case is Florida Trust Code Section 736.0503, Exceptions to spendthrift provision. Subsection (2)(a) grants an exception to the enforce of a spendthrift clause against a "beneficiary’s child, spouse, or former spouse who has a judgment or court order against the beneficiary for support or maintenance." If you son's ex-spouse has a judgment for either child support or spousal support, she will be able to obtain "an order attaching present or future distributions" from the trust. I hope the foregoing has been helpful. Please seek further advice for a local attorney.

Resident of Ohio, Vacation Property in Minnesota--Two wills?

Question: I previously executed a will that only disposes of my vacation home in Minnesota. I now wish to execute a will for all my other property. Can I have two separate wills, one for the Minnesota property and another for all my other property?

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Answer: When revocable trusts are used to pass on testator's property after death (also known as a living trust), it's not uncommon to create separate living trusts for various parcels of real property owned by the testator. However, separate wills is not standard. Most last will forms (such as the sample last will at MedLawPlus.com) explicitly revoke all prior last wills. I see no reason to have two separate wills under the facts related above. The only fact pattern I have run across where it is common for a testator to have two wills is the situation where he or she lives in the United States but owns real property outside of the United States.

Under the fact pattern given in the question, the typical setup is for the testator to create one will disposing of all property. At death where a decedent who lives in one state but owns real property in another, two probate estates are created: one in Minnesota just for the real property decedent owned in that state and a second estate in Ohio for the remainder of decedent's property. The fact that the will was executed in Ohio (i.e., the decedent's state of residence) according to that state's probate code will not prevent its admission into probate court in Minnesota for disposition of the real property in that state.

Probating A Will Executed In Another State

Question: My mom is a resident of North Carolina. She is visiting me in New York. She is not feeling well and is also 96 years old. I have her will from Florida, where she used to live, do I need a new will for North Carolina?

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Answer: The requirements for execution of a last will are nearly identical in both Florida and North Carolina as both statutes are based upon the Uniform Probate Code.

Florida: Section 732.502 Execution of wills.--Every will must be in writing and executed as follows:
(1)(a) Testator's signature.--
1. The testator must sign the will at the end; * * *
(b) Witnesses.--The testator's: 1. Signing, * * * must be in the presence of at least two attesting witnesses.
(c) Witnesses' signatures.--The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.

North Carolina: Section 31‑3.3. Attested written will.
(a) An attested written will is a written will signed by the testator and attested by at least two competent witnesses as provided by this section.
* * *
(c) The testator must signify to the attesting witnesses that the instrument is his instrument by signing it in their presence or by acknowledging to them his signature previously affixed thereto, either of which may be done before the attesting witnesses separately.
(d) The attesting witnesses must sign the will in the presence of the testator but need not sign in the presence of each other.

A written last will properly attested by two witnesses according to the laws of Florida should generally be valid in North Carolina; however, you would need to take the document to a North Carolina lawyer for a legal opinion. Some states restrict who may serve as a witness to a last will (such as disqualifying beneficiaries) but North Carolina's statute on this point is very broad. See Section 31-8.1.

Another issue is whether a will made self-proving in Florida under that state's law is admissible as such in North Carolina. A self-proving will is one admissible without further evidence and usually signifies that the testator and witnesses' signature on the document are attested under seal by a notary. The generic format for a North Carolina self-proving will is found in Section 31‑11.6. I note that the suggested format in the statute has a blank for the state in which the document was executed before a notary, which leads one to believe North Carolina law envisions last wills executed in other states qualifying as self-proving in North Carolina. Again, a NC lawyer must review the document to give you a legal opinion. What is the consequence if the Florida last will does not qualify as self-proving in North Carolina? An affidavit from one or more of the witnesses to the will's execution must be located and affidavits obtained for probate of the will.


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The Pitfall of Specific Bequests

Question: I own a valuable vintage auto that I wish to leave my nephew but only if there is enough money in my estate to take care of my wife. Can I do that with an online last will? Stan, California.

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Response: When a last will bequeaths a specific item of property to a designated beneficiary, we call that a specific bequest. The problem presented by your question is that the standard language of specific bequests are that the devisee takes without any qualifiers (i.e., red corvette to my nephew James Jones). To accomplish the result you desire, the specific bequest of the vintage auto to your nephew should be conditioned on the size of the marital estate with your wife (if she survives you) being of a certain size. I'm not aware of any online last will template containing such language. The MedLawPlus.com® last will form does not allow for conditional specific bequests. I suggest you retain a lawyer to custom draft this provision of your last will.

One additional trap to keep in mind with last wills is that specific bequests of an identifiable item of personal property only apply to that item (i.e., the specific vintage auto you name in the will). For instance, if you leave a 1966 red Corvette to your nephew but later sell it and acquire a 1967 Ford Thunderbird which is owned at death, the specific bequest to your nephew will not transfer from the Corvette to the Thunderbird meaning the specific bequest of the vintage auto fails under this example. See Section 2‑606 of the Uniform Probate Code.

Intestate Succession--Laws of US States

Over at my commercial website, there is a page with links and excerpts of the intestate succession laws of the 50 states plus the District of Columbia. These laws are used to determine who inherits in cases where the decedent dies without a valid will. At the bottom of the page for each state is a comment text box. Feel free to leave a question there about the intestate succession laws for that state. If there are sufficient fact stated in a concise manner, I'll try to answer the question.

Child from Prior Marriage / Relationship

Question: I have a child from a prior relationship but am now married to another woman. My wife is pregnant. I want to provide for my eldest child in case I die. Do I need a trust?

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Response: Perhaps. The standard estate planning template for a married couple is for each spouse to leave everything to the other spouse with the kids as contingent beneficiaries in cases where both the husband and wife die. That template does not necessarily work for blended families (i.e., one where at least one child of the couple has a parent other than the husband and wife). Taking your case as an example, if you die and everything is left to your wife, can you rely on her to provide for your child by another woman? That is the crux of the problem with blended families. So you are left with trying to balance the needs of children by different mothers as well as your wife in your estate planning decisions.

One option is life insurance. Perhaps there is a child support order in effect in your case already requiring that you maintain life insurance payable to the mother of your eldest child. Let's assume you have not been ordered to maintain life insurance for the mother of your child. The first priority is to ensure the basics of life are covered for your eldest child. If you are a younger man (which I assume from the question), term life insurance is a cost effective approach to cover necessary living expenses and education until the child reaches adulthood. Another administratively simple option is to name the child a transfer on death beneficiary of one of your financial accounts (in lieu of life insurance). Most states allow this type of designation for financial accounts and it's easy to put in place.

But a minor cannot take control of his or her own finances. If you die leaving your child the beneficiary of a life insurance policy, the child's mother mostly likely will be named guardian to hold and spend that money for the child's benefit. If you do not trust the mother to do the right thing, then a revocable trust that remains unfunded until you die can be useful. What a revocable trust does is allow you to name a successor trustee for after your death to administer any assets that have been set aside for your eldest child. The successor trustee, as opposed to a court appointed guardian (who would most like be the child's mother), will be the one to take control of investing and disbursing the trust funds for your child's benefit.

The foregoing are just general observations on a few fragmentary facts. An attorney must sit down with your and go over your entire family and financial situation to give a recommendation on whether or not a trust is right for you.

Death of Sole Shareholder With Revocable Trust

Question: My father, sole stockholder of his architectural business and corporation, passed away. He had a revoable living trust with pour-over will leaving everything equally to my brother and I. His business has no activity and any remaining funds were disbursed to pay business debts. We want to dissolve the corporation. I am trustee and executor of trust and will. Is it correct that my brother and I can as heirs to the stock - have a shareholders meeting, appoint ourselves to the board and as officers and then vote for and file for dissolution of the corporation? William, California

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Response: The first issue that comes to mind is whether or not your father's revocable trust owned the shares of stock in his architectural corporation (or the shares were subject to a transfer on death designation to the trust). How do you tell? Try and locate the share certificate and / or the corporate minute book. A trust only possesses those assets transferred to its ownership.

Let's assume there is no record of the shares being transferred to the trust during your father's life. The provisions of a pourover will can only be used to transfer property by opening up a probate estate and transferring assets via the probate process. Obviously, you wish to avoid this but this might not be possible. One suggestion is to call the general information number of the California Secretary of State's business entities office and tell them you have a legal question regarding the mechanics of dissolving a California corporation. In some states, the secretary of state's office will field questions of this nature. I'm not sure whether California does or not. It can't hurt to ask and see if they will route you to a staff attorney or paralegal who will at least attempt to answer the question. The secretary of state's office might have an internal policy of accepting articles of dissolution from the executor of the estate of a deceased sole shareholder (but I wouldn't bet on it).

As always, your best source of information is a local attorney experienced in California probate and corporate law.

p.s. If all your father's other assets are properly titled in the name of the trust and this is the last asset to deal with, you won't have to go through a full estate probate cycle to take care of dissolving the corporation to my knowledge. You would file in the California probate court for letter of administration formally making you the administrator of your father's estate. List the shares of the architectural corporation as the sole assets of the estate. Once that is accomplished, I believe you can vote the shares as executor. Next, sign a resolution appointing you sole director. Next, sign resolutions as sole shareholder and, also, as sole director approving dissolution of corporation. File the required documents with the secretary of state's office. Once completed, close the probate estate as it no longer possesses any assets. Again, local counsel can walk you through this process and prepare the necessary documents.

All Assets TOD, Do I Need A Will?

Question: I am widowed, have grown children, my house, car, and financial accounts that are all transfer on death. Do I need a will? Cindy, Missouri.

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Response: Legal issues are rarely black and white, most wallow in shades in grey. So it is with your question Cindy. If all of your assets have proper TOD designations, then it is unlikely your heirs shall need to open a probate estate after your passing and, thus, the function of a last will greatly decreases. However, what if an asset exists that you forgot to TOD? What if the form used to create a TOD designation on one of your assets is found invalid? Even in cases where no probate estate is created, a last will naming an executor (aka personal representative) is useful. For instance, your last federal income tax return can be signed by the executor named in your last will. Further, any loose ends with creditors (such as credit card companies), expenses of your last illness, arranging the details of burial, and closing accounts with your financial institutions can be facilitated by someone close to you being named executor in your last will. It gives some semblance of authority to this individual to act in small matters without a formal probate estate being opened.

So one must balance the potential help afforded to your heirs as discussed above against the expense of obtaining a last will. Lawyers do not work cheap; however, they do offer you greater assurance that their work is in accordance with the law. No such assurance comes from online last wills; however, they are inexpensive. Only you can decide how to proceed.

Testator Physically Unable To Sign Will

Question: I am assisting my brother in preparing his wills. He is currently in a rest home. My brother's condition (the result of age and being legally blind) virtually prevents him from signing a Will with a legible signature. I have been told that he can authorize someone else to sign for him, as long as his authorization and the signing is observed by the Will's witnesses. Is that true? Robert, Arizona.

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Answer: The first question is whether your brother is mentally competent to execute a last will. That determination must come from your brother's doctors. Assuming he is, the next issue is his physical inability to sign his name to the last will document. The Arizona Probate Code (as in other states) provides a solution to this problem. It reads, in pertinent part, as follows at Section 14-2502:

A. [A] a will shall be:
1. In writing.
2. Signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction.
3. Signed by at least two people, each of whom signed within a reasonable time after that person witnessed either the signing of the will as described in paragraph 2 or the testator's acknowledgment of that signature or acknowledgment of the will.

Emphasis added. Although the statute seems clear on its face that a last will document may be validly executed if someone else signs the document in the "testator's conscious presence", the testator must have knowledge of the entire contents of the last will (if he is unable to read) before orally authorizing its execution by another.

There is one final tangential issue that might come into play. In Arizona, there is a presumption of undue influence which invalidates a last will. Undue influence exists when one who occupies a confidential relationship to a testator is active in procuring the execution of the will AND is one of the principal beneficiaries of the will. Those acting as attorney-in-fact under a power of attorney executed by the testator have been held to occupy a confidential relationship with the testator. See Estate of Shumway, 9 P.3rd 1062 (2000). Proceed with caution if your hold a financial power of attorney AND are to be a beneficiary of your brother's last will.

Last Will Not Created In State of Residence

Question: My husband wrote a will up and had it notorized in Florida. We lived in NJ at the time, he has since passed. Is it a valid will? Cindy, New Jersey.

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Response: Two issues are presented by your question: (a) whether the last will is valid in the sense that the court will accept it for probate in New Jersey and (b) whether it is a self-proving will that can be admitted into probate without the need to get affidavits from the witnesses to the will's execution. As to the first question, the fact that you were in Florida when the will was executed although residents of New Jersey should not, by itself, effect the legality of the will. New Jersey probate law sets for the following as the rule for a legal last will.

3B:3-2. Formal execution of will. Except as provided in N.J.S. 3B:3-3, every will shall be in writing, signed by the testator or in his name by some other person in his presence and at his direction, and shall be signed by at least two persons each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will.

Note that it is not necessary for the will to be notarized in order for it to be valid.

Although having the will notarized is not necessary for a valid will, it is necessary to make the will self-proving. It may or may not be difficult for you locate the witnesses to the will in order to secure affidavits from them (which will be necessary if the will is NOT to be self-proving). On this point, the question is whether a notary licensed as such in the State of Florida is a proper officer before whom to execute a New Jersey last will so that it will be accepted into probate in New Jersey. I don't know the answer to that question. As always, the best course of action is to take the will to a local attorney experienced in probate administration for an opinion on the matter. I hope the foregoing was helpful in some way.

Question On California Probate Law

Question: My brother died three months ago and now my sister-in-law is expected to die soon from cancer. Who inherits the money. Todd, CA.

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I'll make a few general statements on the issue Todd but the question lacks sufficient information to be precise. I assume your concern is whether your family will inherit a portion of your brother's estate. No will was mentioned so I'll assume your brother died intestate. Let's start with the mechanics of what his estate contains. California is a community property state. His estate contains his separate property and 1/2 of all community property. Any property jointly owned (regardless of its nature) passes outside of probate to your sister-in-law by operation of law.

Does the impending death of your sister-in-law play into this equation in any way? The Uniform Simultaneous Death Act provides that if two or more people die within 120 hours of one another, each is considered to have predeceased the other. Your sister-in-law has survived your brother for well past the 120 hour threshold, therefore, the fact that she may not have long to live does not play into the answer to your question unless your brother has a will that contains a contingency on her inheritance from his estate with a longer period. That's unlikely even if he has a will. (Note: California did not enact the most recent version of the Uniform Simultaneous Death Act. California's version is not as far reaching.)

Assuming your brother died intestate, what portion of his estate goes to his widow and what portion to other heirs? That depends on whether he had children. A good summary of the California intestate succession laws can be found here.

Searching For The Last Will

My wife's natural father is very sick. Her relationship with him sadly was distant by his choice. He has been remarried for 14 years or so. The issue is my wife does not feel comfortable asking his spouse if the father has a will. What occurs if he passes away and nothing is said about a will. This is an uncomfortable situation at a very difficult time. Before slipping into an unconscious state the father showed great regret for his choices towards his daughter. Henry, Kentucky.

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Your wife's situation is common in cases where the parent remarries. The problem is often compounded by (a) distrust between the new spouse and the children of the prior relationship and (b) a financial disincentive on the part of the new spouse to produce a will if one exists bequeathing part of the estate to others. I think it's vital that your wife ask her father whether or not he has a last will (and, also, whether she is a beneficiary) before he passes away. Perhaps he is too ill to respond at this point.

Most states have a law in their probate code compelling persons in possession of the last will of a decedent to file it with the probate court after the death of the maker of the will. A quick check of the Kentucky probate code found no such statute, however, there is a Kentucky law stating that the court, "on being informed that a person has in his custody the will of a testator, may summon him, and, by proper process, compel him to produce it." Kentucky Stat. §394.160. When the father passes away, if there is no communication from the surviving spouse, check with the clerk's office for the probate court for the county in which the father resided at the time of his death. If a will was presented for probate, that is where it would be filed. If no will is filed, I think you need some sort of information about the existence of a will and who most likely possesses it in order to seek a court order compelling production of the will.

Last Wills And Divorce

I frequently receive questions regarding the effect of divorce upon a last will. Most states have a provision in their probate code invalidating bequests to former spouses under certain circumstances. Below are samples from three states.

Florida Stat. §732.507. Effect of subsequent marriage, birth, adoption, or dissolution of marriage.--
* * *
(2) Any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage. After the dissolution, divorce, or annulment, the will shall be administered and construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage, unless the will or the dissolution or divorce judgment expressly provides otherwise.

California Probate Code § 6122. (a) Unless the will expressly provides otherwise, if after executing a will the testator's marriage is dissolved or annulled, the dissolution or annulment revokes all of the following:
      (1) Any disposition or appointment of property made by the will to the former spouse.
      (2) Any provision of the will conferring a general or special
power of appointment on the former spouse.
      (3) Any provision of the will nominating the former spouse as
executor, trustee, conservator, or guardian.

Texas Probate Code § 69. WILL PROVISIONS MADE BEFORE DISSOLUTION OF MARRIAGE. * * * (b) If, after making a will, the testator's marriage is dissolved, whether by divorce, annulment, or a declaration that the marriage is void, all provisions in the will, including all fiduciary appointments, shall be read as if the former spouse and each relative of the former spouse who is not a relative of the testator failed to survive the testator, unless the will expressly provides otherwise.

All three of these state probate provisions only apply to situation where the testator (i.e., maker of the will) was married at the time the will was made. It is not uncommon for an individual to intentionally make a bequest to a former. So long as the last will containing the bequest to said former spouse was executed AFTER the divorce was completed, these statutes do not invalidate them. What if the the decedent filed for divorce, did not change his last will while the divorce was pending, then died before the divorce became final? For the states of California, Florida, and Texas, to my knowledge the surviving spouse against whom a divorce action was pending at death still recovers any bequest made to her in the decedent's last will.

If you are faced with a set facts in the area of divorce and last wills not discussed above, leave a comment and I'll take a look at it (no guaranty I'll come up with an answer though).

The Probate Estate, What's in and What's out?

Reader Question: Do proceeds of an insurance policy pass under the will? Kevin.

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Kevin, I hope you don't mind me taking your limited question and expounding further on the issue. In the vast majority of cases, life insurance proceeds pass to the beneficiary of the life insurance policy named in the policy by the owner of said policy. Usually, but not necessarily, the owner of the policy has insured his or her own life. However, it is possible and not unheard of for the owner of the policy to name his or her probate estate as the beneficiary of the life insurance policy. In this case, and only this case, the proceeds of the life insurance policy would be paid into the probate estate and distributed pursuant to the terms of the decedent's last will. Thus, the answer to your question lies in an examination of the policy for the identity of the named beneficiary.

What other types of assets pass outside of probate? Bank, brokerage and other financial accounts including 401(k) and IRA accounts pass outside of probate if they have a beneficiary named on form filed with the financial institution (for states with laws allowing beneficiary designation on financial accounts). See Uniform TOD Security Registration Act. Real estate that is jointly owned with right of survivorship also passes at death outside of probate to the surviving joint tenant. Several US states also allow TOD transfer of items of personal property other than securities.

This sometimes comes as shock to beneficiaries of the estate of a deceased individual. Let's examine a hypothetical to get a sense of the impact that TOD designation and joint ownership with right of survivorship can have on an estate. George is 57 years of age, married to his 2nd wife. They no children together but George has three children from a previous marriage. In his will George names his three children as the sole beneficiaries of his estate. His major assets are as follows: home jointly owned with wife (equity $150k), 401(k)--$100k, $20k in savings account, and motor vehicles worth $12k.

George dies and his will is filed in probate. Real property owned jointly by a husband and wife is assumed by the law to be held with a right of survivorship. Thus, the home passes to George's wife outside of probate. Further, George named his wife as beneficiary of his 401(k) plan. In total, only $40k in assets were listed in the inventory of George's estate. The burial cost $5k. Debts existed of $3k. The probate attorneys fees and costs were $6k. Further, surviving spouse was entitled to a forced share under state law of not less than $25k. That leaves $1000 to be split three ways between George's children. The example of Estate of George is not an uncommon one, unfortunately.

Portfolio Shrunk, Now Review Your Last Will

OK, take a deep breadth. We've all taken financial hits. The DJIA closed at 12,514 on January 12, 2007 and touched an intraday low of 7982 on November 13, 2008, a loss of 36% in less than two years. In these troubled times, you have many other issues to concern yourself with but another to put on the "to do" list is review your last will. Why? Falling net worth results in specific bequests (both charitable and otherwise) eating up an increased percentage of your estate. The assets of a probate estate are paid out in a specific order: (a) administrative expenses of the estate such as attorney fees, (b) debts of the estate such as taxes, (c) specific bequests, (d) the residuary of the estate. This means a loss in value comes out of the residuary of the estate first. Let's break down an example. In 2007 when he executed his last will, Joe had a net worth of $1.5 million. Let's assume Joe's 2007 last will has specific bequests as follows:

• $50,000 to each of two sons
• 5 nieces and nephews, $10,000 each,
• Boys and Girls Club $50,000,
• remainder to wife.

If Joe dies with the same net worth as in 2007 (i.e., $1.5 million), the distributions from his estate might look like this:

• $10k for attorney fees and probate court costs,
• $100k to sons,
• $50k to nieces and nephews,
• $50k to Boys and Girls Club, and
• $1.29 million to wife.

Wife comes out fine (depending on your perspective) with $1.29 million. But checkout the effect of a 30% drop in Joe's net worth to $1.05 million due to taking a hit in the stock market.

• $10k for attorney fees and probate court costs,
• $100k to sons,
• $50k to nieces and nephews,
• $50k to Boys and Girls Club, and
• $840k to wife.

$840,000 sounds like a comfortable amount of money on the face of it but consider this might include the equity of the primary home. For argument's sake, let's say Joe's home has $400k in equity. That leaves $440k in cash for Mrs. Joe. Not in dire straights but not comfortable either. Mrs. Joe might be forced to sell the home if extraordinary expenses pop up like medical bills in the family. With this information in mind, Joe may want to reduce some or all of his specific bequests to push more assets down into the residuary of his estate for the benefit of his wife.

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

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.

• Arizona.
  
• California
  
• Colorado
  
• Florida (see section 2)
  
• Texas, couldn't find a provision in the probate code explicitly accepting wills from other states but this blog post from a Texas lawyer states that Texas probate courts give "full faith and credit" to wills from other states.
  
• Washington
  

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

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:

• Arizona Probate Code Section 14-2603.
  
• California Probate Code Section 21110.
  
• Illinois Probate Code Section 755 ILCS 5/4‑11.
  
• Michigan Probate Code Section 700.2603.
  
• Missouri Probate Code Section 474.460.
  
• New York Probate Code Section 3-3.3 (click on Estates, Powers & Trusts).
  
• Texas Probate Code Section 68.
  

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!

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.

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.