Dear Len & Rosie,
My Mom is 76 and was diagnosed with esophageal cancer last month. She has a handwritten will that she gave me last year. She’s concerned now that maybe that isn’t enough. Her main asset is her home which probably has $200,000-$300,000 in equity. Should she record the will to make it more valid or should she get a trust? She’s been on chemotherapy and she’s starting radiation next week. Any advice would be appreciated.
Christine
Dear Christine,
In California, handwritten, or “holographic” wills are legal. Your mother’s holographic will is valid provided that she wrote it in her own hand, and signed it. It should be dated too. That isn’t a strict legal requirement, but the law presumes that an undated holographic will was signed before any other will she signed that was dated. Readers outside of California should know that not all states recognize the validity of holographic wills.
Recording a will is pointless. It wouldn’t add to the authenticity of your mother’s will for her to record it, and recording her will won’t protect your mother if her original will is lost. The same goes for taking your mother’s will to a Notary Public to have her signature acknowledged.
We do not have a copy of your mother’s will to review, so we can’t tell you if it shall work to distribute your mother’s estate. You and your mother may want to have an estate planning attorney review it for you. The rules of interpreting wills to see what the words mean is based on legalese, not common English. It is very possible that your mother’s wishes are not accurately reflected in the language of her will.
Your mother should also consider creating a revocable trust to avoid probate. Probate fees are based on the gross value of a decedent’s estate, not the net equity in her home plus her other assets. If her home is worth $700,000 before subtracting what she owes on it, probate will cost her heirs at least $17,000 in lawyer fees. Probate also takes one to two years to complete. She may want to consider a revocable trust or even a revocable transfer on death deed to help you avoid having to probate her estate after her death.
Even more important, if your mother made her own will, it’s not very likely that she has a durable power of attorney or an advance health care directive. She needs these, desperately, so that you or other trusted family members or loved ones will be able to manage her affairs, and make important medical decisions on her behalf, should she become incapacitated.
Len & Rosie
Len Tillem and Rosie McNichol are elder law attorneys. Contact them at Tillem McNichol & Brown, 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the internet at www.lentillem.com.
