Should a Family Member Draft My Will?

June 17, 2013 by Scott C. Soady

When it comes to drafting your last will and testament or other California estate planning documents, it’s important you work with an attorney who is not only knowledgeable and experienced, but also someone who is impartial and not looking to benefit financially from your future estate. To that end, the California Probate Code specifically prohibits making a transfer by will, trust or similar instrument to the person who drafted that instrument or anyone related to that person. This means, for example, that a probate court will not honor a will leaving a person’s estate to the attorney who drafted that will--or the attorney’s wife, law partner, child, et cetera.

There is an exception, however, for attorneys who are already related by blood, marriage or civil partnership to the person making the will. If your son is an attorney and drafts a will for you where he’s a beneficiary, that would be valid under California law. Things can become more complicated when dealing with attorneys related by marriage, as a recent California Court of Appeals case demonstrates. This case is only discussed here for informational purposes and should not be construed as a statement of the law and is only for illustrative purposes.

Step-Children Can Complicate the Process

In early 2013, an appeals panel in Ventura upheld a trial court’s decision to admit the last will and testament of Oligario Lira into probate. Lira died in July 2010. Four months earlier, he divorced his wife of over 40 years. Both Lira and his ex-wife had children from prior marriages. In 2009, before his divorce became official, Lira executed a new will and trust. He named his three children and three of his soon-to-be-ex wife’s children as the primary beneficiaries. Robert Terrones, one of the stepchildren, was named personal representative of the will and successor trustee of the trust. Glenn Terrones, a child of one of the step-children, was the attorney who drafted Lira’s will and trust.

After Lira’s death his daughter, Mary Ratcliff, filed a petition with the probate court declaring her father died without a will (intestate) and asked to be named administrator of the estate. Robert Terrones then appeared with Lira’s will and asked to be named personal representative. Ratcliff objected, citing the fact Glenn Terrones drafted the will, which directly benefitted three of his relatives. Ratcliff argued that because her father was in the process of divorcing his wife, and any transfer of property would not occur until after the divorce became final, the exemption did not apply. In other words, since the Terrones were not related by marriage to Lira at the time of his death, any transfers to them were invalid.

The trial court and the court of appeals disagreed. Both ruled that the key is when the will was made and not when the person making the will died. When Lira signed his will, he was still legally married, and thus the Terrones were related by marriage. Thus they were exempt from the general ban on attorneys drafting wills to benefit themselves or family members.

Avoiding Family Squabbles

The above case is provided only as an illustration and should not be taken as a definitive statement of the law. Nor should it be construed as advice to hire family members as estate planning lawyers. The best way to avoid the type of litigation after your death is to work with an independent estate planning attorney from the outset who can advise you of any potential hazards. If you have any questions or concerns, please contact the Law Office of Scott C. Soady in San Diego at 1-877-435-7411.