Wills and Advanced Health Care Directives

Dear Len & Rosie,

I have a friend who is dying of cancer. Doctors have given her two months to live. She has no will or living trust. She has no estate, but does have furniture. The furniture is not worth much, maybe $5,000. Can I create a video tape of her stating what she would like done with her belongings? 

She also asked me to have her cremated and her ashes scattered in the Pacific Ocean. She has no money so I was going to pay for all these services myself. I don't mind cause she is a dear friend.

I'm concerned if I do all this, could I get in trouble. She has no heirs whatsoever. She is an only child, never married and no children. She came over from France about 35 years ago. I wanted to get a lawyer out to her apartment, but it would cost me $1,000 and I need this money for her cremation. What should I do?


Dear Lupe,

It's always good to hear from people like you. You have been very generous to your friend. More often than not, the "friends" we hear about are looking after their own interests and act with more than a little bit of greed. Thank you for the kindness you have shown to your friend.

Video wills are not legal in California. Sometimes lawyers will videotape clients reading their wills or otherwise stating their wishes, but they do this when there's a good chance of a lawsuit after their client's death. Video wills do not replace wills but they can provide backup evidence that a person making a will has the mental capacity necessary to do so and isn't a victim of undue influence.

Your friend ought to create a "holographic", or handwritten will. She can simply write a letter in her own hand, stating that it's her last will and testament and describing how she wants her personal possessions divided upon her death. She can name you or another trusted friend as the executor of her estate, but since her assets are worth so little, there will be no probate upon her death, and no executor will be appointed by the court. If she is unable to write out her wishes on her own, you or another person can do it for her, but then her will would have to be witnessed by two adults who are not inheriting any portion of the estate.

Alternatively, you can download a California Statutory Form Will from the State Bar web page at www.calbar.ca.gov. There's a column on the left labeled "Quick Links".  The last one points to the free will form. Or, just send an email to len@lentillem.com and we'll email you the form.

As far as her cremation goes, it is very important that your friend sign an Advance Health Care Directive naming you as her agent for health care decisions. This is the only way that you will have the legal authority to arrange for the disposition of her remains after her death. Either get a form health care directive from your friend's medical provider, or download one for free by clicking here.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at www.lentillem.com. Len also answers legal questions each weekday, 3-4 PM, on KKSF Newstalk 910 AM.