The Danger In Writing One’s Own Estate Documents

16 Jan

A new California court case illustrates how writing one’s own estate plan rather than using an attorney can lead to unexpected costs and legal problems. In the Estate of Duke case decided by the California Court of Appeal this past December, the decedent had drawn his own will otherwise known as a “holographic” will. They are perfectly legal provided it is written in the decedent’s own handwriting, signed, and dated. The will provided that at his death his property was to pass to his wife and that if they died at the same time, the property should be divided among two charities.

As it tuned out, his wife died before him. However the will did not specify what would happen if his wife predeceased him. Upon his death, the two charities petitioned the Court to probate the will and distribute the property. Two of decedent’s nephews (not named in the will), appeared in Court and argued that since the will did not provide for the wife predeceasing, the condition by which the charities were to take the property did not occur. Therefore nephews argued, they should be entitled to decedent’s estate by California statutory law.

The Court agreed. Since the will was clear and not ambiguous, outside evidence of decedent’s intent was inadmissible. The clear result said the Court was that the will as written failed and was therefore void. The Court held the decedent’s estate should pass according to California law and not the will itself. By California law, the two nephews were entitled to the property.

The moral of the story is don’t try to do it yourself. Your heirs and loved ones are too important and one slip of the pen can lead to unintended consequences.

Stephen J. Gross is an attorney located in West Los Angeles practicing in the areas of business law, real estate law, wills & trusts, and asset protection. Our office offers a free 1/2 hour phone consultation to PagesLA readers. For more information please visit sjgassociates.com

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