Looking for a needle in a hay stack

Dear Len & Rosie,

My wife’s father passed away recently and she and her siblings are not on best terms. They would like to see if there was a will but don’t know how to locate the executor. Her father had told her it was someone outside the family. How does one find out who the executor of a will is, and for that matter how does the executor find out someone has died?

Mark

Dear Mark,

You’re looking for a needle in a hay stack. Your father-in-law’s will, assuming he made one, could be anywhere. He could have named anybody as executor, but it’s more likely than not that he named one of his children, or maybe one of his friends. Ask them.

You also touched on the problem of an executor learning of the death. If the executor isn’t close to your father-in-law, how’s he or she going to know? Consider that your father-in-law’s executor may not actually know that he or she is named as executor in the will. Did your father-in-law even inform this person?

One place to check is with the local bar association where your father-in-law lived. They can send out an email to their member attorneys asking whether or not any of them made a will for your father-in-law.

You will likely have to undertake a morbid scavenger hunt. Your family will have to sort through your father-in-law’s belongings to see if there is a copy of a will lying around, or maybe even a canceled check made out to a local attorney. If you can’t find a will, then the estate will pass by intestate succession equally among your father-in-law’s children, with the share of an already deceased child passing to his or her living descendants, assuming he wasn’t survived by a spouse.

Any of the children may petition the court to be appointed as administrator of the estate, which means this could lead to a fight over who gets to be administrator.

This is a cautionary tale. Many people want to keep their estate plans confidential, but they should not be too secretive. Some of you may go so far as to make extra copies of your wills and trusts and pass them out to your children. If you don’t want to do that - if you wish to protect your privacy, then just give your children or other beneficiaries your attorney’s business card with a note telling them to contact the attorney upon your death or incapacity.

Len & Rosie

Holographic Wills

Dear Len & Rosie,

I am unmarried, I have no kids. I own a home and a vacation rental. I have written a will in case I die unexpectedly. Does a will have to be witnessed? If not, is it completely invalid? Do I need an attorney to hold onto the will to make sure that it is implemented? Is there any difference between having an attorney implement a will and having a brother or sister implement the will?

Burt

Dear Burt,

You may create your own holographic will that doesn’t have to be witnessed. All you have to do is to write out your wishes in your own hand, and sign and date your will. If you type out the will on a computer or typewriter, or someone else writes it for you, then to be valid you must sign your will before two adult witnesses, neither of whom may inherit from you upon your death.

But you get what you pay for. After your death, your heirs will experience the joy of probate. If the gross value of your estate, before your debts are subtracted, is worth $1,000,000, then your heirs will delight in the fact that a lucky probate lawyer will earn statutory probate fees of $23,000. The executor you named in your will, if you named one, gets another $23,000 unless he or she waives fees. If your estate is worth $1,500,000, the lawyer and executor each get an extra $5,000 for precisely the same amount of work. There may be extraordinary fees for extra services such as selling your home and vacation property. And to put the icing on the cake, your heirs will learn new lessons in patience while waiting out the typical 9-15 months it takes to complete a probate. Look at all the time and money you saved by doing a simple holographic will.

Of course that’s assuming that the person who found the will hidden beneath your mattress didn’t make it disappear so he or she could inherit more from you under your previous will or by intestate succession (the law about who gets what when someone dies without a will). There’s a good reason why many lawyers keep their clients’ original wills for safekeeping.

Yes you can your own estate planning, but how would you even know that your home made holographic will does what you want it to do? How would you know that your plan is what you really need? There are many things you may not know how to deal with in an estate plan such as restrictions against gifts to caregivers, spendthrift heirs who are bankrupt or owe back child support, Special Needs Trusts for disabled beneficiaries, Medi-Cal estate recovery claims, Estate Taxes and Generation Skipping Transfer Tax, Proposition 13, and IRA beneficiary designations, to name a few.

That’s why we hesitate to tell anyone that they can create their own will, or even a trust to avoid probate, and expect everything to turn out the way they expect. It’s like setting a broken bone. Sure, a boy scout could do it in a pinch, but you’d prefer a physician. Experienced trusts and estates attorneys do a lot more than filing out forms. They know what questions to ask and the best way to translate a client’s desires into an estate plan that’ll work.

Len & Rosie