What makes a will valid in California?

First, let me start by saying that I recently had a “will” in a similar format come into my office. Giving it the benefit of the doubt, I took a deep dive into the law and case law at my disposal, trying to find some loophole to make this a will.

Unfortunately, this is NOT a will under California law. I had to give the bad news to my clients. (Don’t worry, we can still take care of business.)

Why not?

First, this will has no mention that this is supposed to be a will. Yes, I mention that I want Kendra (my sister) to be my executor, but other than that, the writing reads more like an informational letter. It is not enough to list my (pretend) assets. If I die, it is helpful information for my sister. If I wanted this to be a will, language that showed my intention to make a will would help convince the court I meant for this to be a will.

Secondly, this writing is typed without being witnessed. You can type a will…but it must be witnessed by two people. NOTE: NOT NOTARIZED! The two witnesses cannot be anyone named as executor or anyone who inherits. If one of those people is also a witness, you’ll need a third witness.

A will can be handwritten, but the law says that the “material terms” of the will must in handwritten. A signature and an afterthought in handwriting do not reach the level of “material terms.” There is a lot of opinion in case law about this, but it has been made pretty clear. Numerous cases have been litigated over a typed will with handwritten notes scribbled here and there. It only creates confusion and fighting when there are doubts about what the person actually meant to do. If you choose to do a handwritten will, please make sure it is HAND WRITTEN. After all, you are not trying to create an expensive post death nightmare for your family and friends. You are trying to help them. The best way to help them is to do things correctly!

Can I do a Will by myself?

The answer is YES. You can make your own will. However, you need to make sure it is done correctly under the laws of your state. If you are interested in making your own will, please research the requirements before trying to do it yourself. The internet and local law libraries are a great place to start. In California, the bar association has a free will form, which can be found HERE. Please read the instructions carefully. One mistake could make your will completely invalid.

As an attorney, it is hard to tell families “no,” and that things will not be as easy as they could have been if the person had properly planned. Taking care of business after a person passes is hard. Taking care of business with an unclear plan, or no plan at all, is even harder. Properly executed documents are a must to avoid confusion and results you never intended.

Can I Use a Notary to Prepare my Will? How about a Paralegal?

Please, for the love of probate court, do NOT use a notary to prepare your will. We probate attorneys make a fair amount of money trying to salvage legal work that was done improperly. The role of a notary public is to verify who you are. They are not authorized to do legal work, and contrary to popular belief, completing a will or other documents is not just a “filling in the blanks” job. I’d consider using a paralegal, but only if that paralegal is working under the direction of an attorney. It is actually illegal for a paralegal to do legal work without an attorney overseeing their work. Please see this article for a rundown of practicing law without a license in California. It is a crime, and you can be charged with a misdemeanor, fined, and look at jail time. If a person who is not authorized to do legal work messes up your paperwork, they can be sued and held liable for the losses and costs your family incurred.

All information provided for discussion purposes only. Nothing in this post or on this website, is contouring legal advice. If you have questions, please consult with a reputable attorney near you.

You can download my very brief estate plan questionnaire from this page. This will help start the thinking process for choosing who will help you manage your affairs.

Please click on the button below to download and print.

To make an appointment with Karrie, please call the office at (760) 223-6026. Our office manager, Rhonda, will be happy to schedule an appointment with you.

Conservatorship is a court process wherein someone is granted permission to take care of another adult. This can be in the form of a limited conservatorship, which covers those persons over the age of 18, but who have mental disabilities that do not allow them to sign paperwork, or it could be a general conservatorship which covers adults who have lost the capacity to care for themselves either physically or financially.

Conservatorships are costly and time consuming. And of course, it means the court is in your family business, watching everything that happens to you. There are the initial hearings and paperwork, and then there are yearly accountings if your estate is involved. A bond is required for the person who is asking to be appointed to care for you.

How Can a Conservatorship Be Avoided?

Avoiding a conservatorship is fairly easy. A person needs to correctly fill out a Durable Power of Attorney form and an Advanced Healthcare form. I do not provide a link to the many free forms available online because I don’t want to be biased. In your searching, just make sure it is written for California. (Please understand this does not apply to a limited conservatorship. You must have capacity in order to sign documents. That is a complicated area of law. Please consult an attorney on whether or not a limited conservatorship might be right in your situation.)

Also, if you fill these forms out incorrectly, you will still be looking at the inside of a courtroom to fix them later. When you do anything yourself, whether it is fixing a leaky sink or your own legal work, it is important to know what you are doing and to do it right the first time. Doing it incorrectly could lead to a more expensive and time consuming problem later.

My office is located at 5104 Lake Isabella Blvd, Suite B., Lake Isabella, CA. I mostly serve the Kern River Valley area, but I have clients located all over the United States. If you live in California, I can help you with an estate plan. If you have a probate that needs to be completed in Kern County, regardless of where you live, I can help with that. I have many probate clients I’ve never met in person! As long as we can phone, mail, and email, this process works well.

At this time, I am closed on Mondays and Fridays for appointments.

I am willing to make house calls to the Bakersfield and Ridgecrest area, but I do charge a travel fee for my time. Also, if you decide a house call is appropriate, you will be responsible for paying the notary fees associated with the estate plan. If you are an in-office client, the notary fees are included since my notary is in house.

Our hours are Tuesday, Wednesday, Thursday: 9am-4am.

• someone you love has passed away and their real property is sitting there, unable to be sold, unable to be transfered.
• someone you love has passed away and they have assets in their bank accounts, or stock accounts, and they won’t release the funds.

What You Need to Know First

There are TWO things you need to do first. Now that I say that, let’s make it THREE things. These steps aren’t very hard.

1.) Make a list of the property left behind.

2.) Determine if any of the property on the list transfers straight to anyone else because they are a named beneficiary, or joint owner. These things do not need probate at all.

3.) Look at what is left on the list. These are the things that might need probate.

Next Steps

• If there is an account or personal property that is worth less than $166,250.00, (if the person passed before April 01, 2022) or $184,500.00 (if the person passed after April 01, 2022), then an affidavit for the collection of personal property can be used. (Probate Code 13100) You can find a sample form HERE for free.
• If there is personal property worth more than $166,250.00/$184,500 (see dates above), then it has to go through probate court.
• If there is real property at all…it will require some kind of probate. If the property is worth $55,425 (death before April 02, 2022)or $61,500 (death after April 01, 2022) or less, a simplified process can be done. The filing fee is $45 with the court. The form for this can be found HERE. Please note, you have to have the property appraised by the probate referee first.
• If there is real property that is worth between $55,425-$166,250.00/$61,500-$184,500, another “simplified” process can be used. This one requires a hearing, and the filing fee is $435. You can find the paperwork for this HERE.
• If there is real property that is worth more than $166,250.00/$184,500.00…then you must go through a full probate. That is the most complex of the three processes.

Also, please keep in mind, that in some cases, even if the house is worth less than $166,250/$184,500 and it qualifies for a more simplified process, the situation may require the oversight of the court for the protection of the heirs. Also, while there are “simplified” processes, these are not always easy. Take a look at your options yourself, first. You may decide to call an attorney to handle the paperwork for you.

I am happy to help clients in the Kern Valley, Ridgecrest, and Bakersfield areas handle their non-litigation probate matters. My office is located in Lake Isabella, but I work with clients from all over, utilizing technology to get things done as efficiently as possible. Having said that, the Kern County court system is completely backlogged. As of this writing, the court calendar for probate hearings is a solid 6 1/2 months out, sometimes 7 months. That means after we draft and submit everything, the hearing will take place 6-7 months later. The same is true for closing the probate. A realistic timeline to open and close a probate in Kern County is about 18 months to 2 years at this time, if everything goes well. Consider this: We are being asked to wait a total of 12-14 months just to have hearings happen. The probate work can’t start until after the first hearing, and we can’t disburse until after the second.

Note: I receive no money, or any other type of gift from posting about this book.

I have a book recommendation for ANYONE who is wondering about where to begin for their personal estate planning, or for a loved ones future plans. 

Earlier this year, I was asked to review, preview, and give feedback on a book written by a fellow attorney. Catherine Hodder, Esq. reached out to me and interviewed me for her website back in April/May of 2017. You can read that HERE. I have never met with Catherine in person, or even talked to her over the phone. But, I like her. She’s smart. I know this because she wrote a very informative, accurate, and easy to read book about a topic that most people don’t understand.  She did an excellent job of breaking down the “legal stuff” and wrote a book about Estate Planning that 1.) does not put you to sleep; 2.) is written for everyday people, not lawyers; and 3.) is extremely well written, and targets those people who have aging parents and growing kids. 

“Estate Planning for the Sandwich Generation: How to Help Your Parents and Protect Your Kids” is a book I wish I had had the time to write. But, now I don’t have to worry about writing a book because Catherine captured everything I wish my current and future clients knew. 

If you are interested in a copy of the book, you can find it on Amazon, or by clicking the following link: Estate Planning for the Sandwich Generation.

Also, I received a shout out in the Acknowledgments. 

I highly recommend this book to anyone who is thinking about wills, revocable living trusts, powers of attorneys, advanced healthcare directives, etc. 

Is it okay to add one of my kids’ names to my bank account or property to avoid probate and make it easier on my family?

The answer depends upon your situation. It is frustrating that I cannot give you legal advice on this topic, but truly, without knowing your situation, I can give zero advice. 

But I can share this information, and maybe you can guess which way I would lean, regardless of your circumstances.

The Good?

You can add another person to your bank account or deed on your property in order to try and avoid probate. When you add another person, this person become a joint owner of the account. For example, you can add your son to your checking account so that he can write checks for you if you need him to, or deposit funds without a fuss from the bank, etc. When you pass away, he has access to the account immediately, making the transition seamless on his part. That can be considered the upside to adding another name on an account or deed. (You can add someone to your property as well.)

The Bad.

When you add another person to your account or property, they become a joint owner. Legally, you have equal rights to the account or property. Let’s say you add your son John to your checking account. You have a retirement check that is deposited every month, and you use this account for everything: a little savings, and paying the bills. If John gets in any kind of financial trouble, your account is now half his, and your money can be taken. The same goes if you add John to your deed. Your property can have liens put upon it against John. You also cannot just take John off of the account or property…he has to consent to it. 

The Ugly!

Many people have added children to their accounts or property without incident. A lot of the time it can work. However, a case recently came out that reminds us that things can get really ugly. Let me tell you a story about Betty, Kelli, and Tom.

Betty has two children: Kelli and Tom. She set up a trust, but be also had a separate checking account at Wells Fargo. She put Kelli’s name on the account. When Betty passed away, Tom insisted that the account was meant to go into the trust and be divided between he and Kelli. Kelli disagreed and said that the account was hers because Mom put her name on the account. A court battle ensued: brother and against sister, and vice versa. 

What did Betty actually want? It didn’t matter and couldn’t be proven, so the law came into play. Probate Code section 5302 states that there is a presumption that joint property is meant to be just that. You need clear and convincing evidence to overcome the presumption of survivorship laws that govern joint accounts. (You can read the decision HERE.)

If you add a child on a joint account, and tell them to split the money with others after you pass, they do not have any obligation to do so. They can claim it as their own. And it is completely legal.

Lesson:

When you add someone to your account or deed as a joint owner to make things easier after your passing, you may be very well on your way to opening the door to liability and fraud while you are alive, and greedy behavior after your death. Your efforts to avoid your children going to probate court may very well land them there in a protracted battle anyways.

A solid plan that is well executed is your safest bet to both protect your assets while you are living, and to help avoid family battles after you are no longer here to look after your family. Consider what a revocable living trust can do for you.

Beginning January 01, 2018, a new $75 fee will be attached to certain real estate documents (and others) that are recorded at the county recorder’s office. This new fee is due to Senate Bill 2, which was signed into law this week. The funds are to be used to address California’s affordable housing crisis.

HOW DOES THIS AFFECT ME?

When you plan for your estate, frequently the best planning includes a trust. When you form a trust, one step you must take is to record a new deed for your real property stating that your property is now in the the trust. This deed gets recorded at the county recorder’s office.

There are certain exceptions to this fee: however, for estate planning purposes, this fee will impact how much it costs for record deeds to and from a trust. In Kern County, most deeds cost between $16-19 to record. As of January 01, 2018, this will go up to $91-94 for the same deed, if you do not fall under certain exceptions.

The short of it is this: if you are putting the home you own AND occupy into a trust, you are exempt from this fee. (Whew!) However, if you have other properties, you are not. There is a certain amount of uncertainty amongst lawyers and county officials in multiple counties: I’ve had contact with others in this area and every county seems to be doing it a little differently. I’ll update this as soon as it becomes more definitive. But so far, the practice here in Kern County is that if someone owns a parcel of land apart from their residence, that land has the $75 fee attached.

THE LAW

The text of the law as found in the Government Code is below, or you can click HERE to read the entire bill.