Ideally, estate planning is something you do long before it becomes necessary. It is never a good idea to wait until you are on your deathbed to make a will. You may run out of time before you can execute a will that meets with the legal requirements of California or another state where you reside.
Piper v. Dimmers
A recent Michigan case illustrates the perils of last-minute or incomplete estate planning. Grace Reid died in 2011 at the age of 69. Reid was unmarried and had no children. Absent a will, Michigan law would distribute her estate—which consisted primarily of some land—to her siblings. After she was diagnosed with heart disease, Reid met with an estate planning attorney to discuss her will. For some reason, she never followed up with the attorney prior to her death.
However, three years earlier, Reid made some handwritten notes regarding her estate. As described by the Michigan Court of Appeals, “The document consists of barely legible notes on two sides of a single sheet of personal stationary bedecked with birds, butterflies and a bible quote.” Several names were written and crossed out or changed. Basically, it was a list of people with dollar amounts, presumably gifts Reid intended to leave through her estate. Among the names were two friends, Sandra and Amy Piper. Reid gave the document to Sandra Piper for safekeeping.
After Reid's death, Piper asked a Michigan probate court to admit the handwritten notes as a valid last will and testament. Michigan does recognize “holographic wills”--documents that are signed, dated and in the handwriting of the person making the will. Unlike traditional wills, holographic wills are not typed and lack the signatures of at least two witnesses.
The Michigan courts rejected the alleged will. At best, the Court of Appeals explained, the document was a draft designed to “organize [Reid's] thoughts and determine how to divide her estate.” There was insufficient evidence to prove the document accurately expressed Reid's intent to make a final disposition of her property.
The Perils of “Holographic” Wills
Like Michigan, California law does permit the probate of handwritten or “holographic” wills. Such wills must be entirely in the person's handwriting should be dated. Failure to date a holographic will may lead a court to declare it unenforceable, especially if it conflicts with another will found among your effects.
While there may be certain emergencies that necessitate the use of a holographic will—such as the man who wrote a will on the side of the tractor he was trapped under—in almost all circumstances, it is better to draft a proper will with the assistance of a qualified California estate planning attorney. Wills don’t need to be complicated. It is only important that the will clearly expresses your intentions and is signed in the presence of at least two witnesses. This minimizes the chances of any confusion (and litigation) after your death. If you have any questions about making a will, please contact the Law Office of Scott C. Soady in San Diego.