Shafae Law

Shafae Law

Shafae Law is a boutique law firm providing comprehensive estate planning, trust, estate, probate, and trust administration services located in the San Francisco Bay Area.

Filtering by Category: Estate Planning

What is... a Holographic Will?

This is part of an on-going series of blog posts titled the "What Is..." series, where we attempt to explain, in simple terms, common estate planning terms and concepts. To read other posts in this series, click here.

“I’m going on vacation next month, so I sent an email to my family to tell them my wishes in case something happens to me while I’m away.”

We hear this a lot. People want to make sure their family members know what they want to happen with their things or who they want to serve as a guardian for their kids, so they send an email. They put it in writing, thinking that it’s better than nothing. And, thinking that typing up something is more official than handwriting it.

Spoiler: handwriting a will is more likely to be legally binding than typing an email that isn’t signed. In fact, if it’s handwritten, signed, and dated, that’s better than typing it. This is known as a hand-written, or holographic, will.

In California, the legal requirements for a valid holographic will are: 1) that it needs to be signed;  and 2) the “material provisions” are in the handwriting of the individual. There is no requirement for it to be dated; however, if the holographic will is not dated and there is any doubt as to whether certain provisions are controlling, then the holographic will may be invalid to the extent of the inconsistency (e.g., no one is sure which document was drafted later in time).

Additionally, if there are any questions as to whether the individual lacked capacity, the will may be deemed invalid. For example, someone who is going into surgery might hand-write a will, but this may bring up questions as to whether that person was on medication or otherwise lucid enough to make the decisions at the time it was written.

Holographic wills were recently in the news as Aretha Franklin was not believed to have a will or a trust. Instead, it was discovered that she had written out her wishes by hand on several different occasions. Michigan, where Aretha Franklin resided when she died, like California, recognizes holographic wills. The question will be whether what she wrote was valid, and which handwritten document would be controlling.

Holographic wills serve a valuable function when your options are limited. If available, the best option is to talk to a lawyer about your wishes and ensure that you have a comprehensive estate plan that benefits you and your loved ones both in the case of incapacity and in the case of death. Call us for a free consultation.

There's No Default For A Blended Family

For people who die without a will or trust, California law provides a default path (intestacy statute) for where your stuff goes after you die. The distribution path of the default law will sound pretty intuitive… for a conventional family. For example, it provides for your surviving spouse first, then your children, then your nearest family members. That sounds all well and good if families always consisted of a current spouse and joint children. But what if your children are from a previous relationship and you are currently in an unmarried relationship? Or what if you and your current spouse both have children from a previous relationship? Or what if you married someone who has children from a previous relationship, but her/his children are not legally or biologically yours? Welcome to the issues that surround being a member of what many call a “blended family”.

California law does not adequately provide a default for blended families. And for good reason. Because there isn’t a “typical” blended family. But if you do zero estate planning, that same default applies equally to everyone, whether or not you’re in a blended family situation. So it’s imperative that you state your desires in a comprehensive estate plan instead of relying on a default provision that may not adequately cover your family situation, or at best might create some unintended consequences.

With a comprehensive estate plan, you can specifically describe who you want to provide for after you die, and how. For example, without proper estate planning, all of your assets could be left to your spouse, who then leaves it all to her/his children, leaving your children out of the path of inheritance. Or, if you are in an unmarried relationship, if you don’t plan properly, your current partner could end up out in the cold with all of your assets going to your children or other family members and bypassing the person you most want to care for.

There are thousands of hypothetical situations we can describe. The critical message here is that if the default doesn’t address your family situation, then it’s important that you adequately describe your wishes in a comprehensive estate plan. Don’t leave your loved ones dealing with undesired but avoidable consequences.

What is... a Power of Attorney?

This is part of an on-going series of blog posts titled the "What Is..." series, where we attempt to explain, in simple terms, common estate planning terms and concepts. To read other posts in this series, click here.

At its core, a power of attorney is the legal authority to act for another person. It allows someone to “step into the shoes” of another person.

There are generally two types of powers of attorney relevant to estate planning: medical and financial. A financial power of attorney is sometimes called “durable power of attorney for financial management,” or just “durable power of attorney.” The medical power of attorney is sometimes called the “advance healthcare directive”, “healthcare directive”, or “living will”.

A power of attorney gives someone the power to make decisions on your behalf when you either can’t do so yourself or don’t want to do so. This may arise when you are incapacitated or elderly; it may also arise if you are out of the country and need someone to call your bank for you, or sign a check for a contractor, or something similar.

The key is to ensure that you have given someone the power of attorney in advance of when you need them to act. Once you are deemed incapacitated, it’s too late to sign a power of attorney. Without the necessary powers of attorney in place, someone will need to go to court to obtain the legal authority to act on your behalf in a time of crisis. Going to court always involves time, expense, and the public nature of court can sometimes be humiliating for the person incapacitated.

So when should you have a power of attorney? Now.

Contact us for a free consultation.


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Redwood City, California 94065

12100 Wilshire Boulevard
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Los Angeles, California 90025

 

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info@shafaelaw.com
(650) 389-9797
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