estate planning
Your Individual Plan
At Kohl & Associates, we individually tailor our estate plans to meet the unique desires and requirements of each client. Our clients receive the benefit of our extensive experience in estate planning, taxation, and estate litigation.
Given that we routinely administer and litigate cases involving Wills and Trusts, we understand the real world consequences of such documents. We've seen how estate plans drafted by others have resulted in unintended distributions, required the payment of otherwise avoidable estate and income taxes, and resulted in unnecessary litigation between the surviving family members. A Will or Trust is a legacy to your loved ones, but if your attorney is not fully versed in the problems that typically arise after the death of a client, then you risk not providing your loved ones with everything you intended or, even worse, you risk creating a situation which forever harms the relationships between your surviving beneficiaries. Our estate plans are designed to avoid all such problems.
Example of a Holographic Will
Having an attorney prepare an estate plan on your behalf takes a certain amount of time and money. If you find that you are in need of a Will and/or a guardianship designation for minor children, yet you don't have the time and/or funds to have an attorney prepare a trust estate plan on your behalf, a Holographic Will can sometimes serve as an excellent, if temporary, solution.
A Holographic Will, which is legal under California's Probate Code, permits you to draft your own Will in your "own hand" which would be accepted by the court upon your death. To qualify as a valid Holographic Will the document must be (1) handwritten by you, (2) signed by you, and (3) designate who is to receive your assets upon death. Although not technically required for a valid Holographic Will, you'll also, at the absolute minimum, want to date the document and name an executor.
The primary benefit of a Holographic Will is that you can create it entirely on your own. You don't need an attorney, a notary, or even any witnesses. If done properly the court will uphold your Holographic Will and assure that your assets are given to the individuals and/or entities you designated, that the individual you want to serve as your executor to carry out your wishes will be able to do so, and, for those of you with children, that your children will be placed with guardians of your choosing.
On the other hand, there are several reasons why a Holographic Will may not represent your best option, especially over the long-term. First, if you pass away with assets and you don't have a Trust, your estate will be required to go through the probate process. Probate is a court procedure that currently takes approximately 1 year or more to complete and incurs significant attorney's fees and costs in the process. For example, an estate worth $600,000.00 would likely incur attorney fees, executor fees, and legal costs in excess $30,000.00. In other words, relying on a self-prepared Holographic Will saves you some money now, but your heirs will likely pay much more in attorney fees and legal costs upon your death and they'll have a significant delay before they receive anything as the probate moves through the court.
Nevertheless, for many people the choice isn't whether to create a Holographic Will or pay for a Trust, due to time or money constraints, the real choice is whether to have a Holographic Will or absolutely nothing. With no estate plan whatsoever you don't have control over who is to receive your assets, who will take control of the administration of your estate, or even who will take care of your children if both parents pass away. For that reason, the Holographic Will remains extremely popular.
The document below is an example of a Holographic Will which could be used as a template. The key thing to remember is that you can't just cut-and-paste, modify, print, and sign. That would be invalid. The entire document must be written by you, preferably in pen. As such, please feel free to use the language below as a starting point for your own Holographic Will.
Last Will and Testament
of
[Insert Your Name]
I, [Insert Your Name], a resident of Orange County, California, declare that this is my Will.
FIRST: I revoke all Wills and Codicils that I have previously made.
SECOND: I am [a widow] [not married] [married and my husband's/wife's name is _________]. I have _________ (____) children now living, namely, ____________ and ______________. I have no other children either living or deceased, natural or adopted, and have no deceased children who died leaving issue. All references in this will to my children shall include the children named above and any child hereafter born to or adopted by me. [Alternatively: I have no children].
THIRD: It is my intention by this Will to dispose of all my property at the time of my death.
FOURTH: I give my entire estate, both real and personal, to my husband/wife, if he/she survives me by 30 days, if not, then my estate is to be equally divided and distributed to my children. If one of my children is under the age of 18 then my executor shall establish a trust and hold that child's share in trust and distribute such funds for that child's health, education, maintenance, and support, until such time the child reaches 18 when that child shall receive the remaining share allocated to that child. [NOTE: This language is merely example language. You can give your assets to anyone you wish upon your death.]
FIFTH: My Executor shall pay from the residue of my estate, without adjustment among the residuary beneficiaries, all inheritance, estate or other death taxes that may by reason of my death be attributable to my probate estate or any portion of it, including any property received by any person as a family allowance or homestead. These taxes shall not be charged against or collected from any beneficiary of my probate estate.
SIXTH: I nominate an executor, to serve without bond, in order of priority, from the following list:
1. [Insert first choice]
2. [Insert second choice]
3. [Insert third choice]
The term “my Executor” as used in this Will shall include any personal representative of my estate.
I authorize my Executor to sell, with or without notice, at either public or private sale, and to lease any property belonging to my estate, subject only to such confirmation of court as may be required by law, as my Executor, in my Executor's discretion, considers necessary for the proper administration and distribution of my estate.
I further authorize my Executor either to continue the operation of any business belonging to my estate for such time and in such manner as my Executor may deem advisable and for the best interests, of my estate, or to sell or liquidate the business at such time and on such terms as my Executor may deem advisable and for the best interests of my estate. Any such operation, sale or liquidation by my Executor in good faith shall be at the risk of my estate and without liability on the part of my Executor for any resulting losses.
SEVENTH: If at the time of my death I am survived by a minor child(ren), then I nominate and appoint a guardian of both the person and estate of my minor child(ren), in order of priority, from the following list, all to serve without bond:
1. [Insert first choice]
2. [Insert second choice]
3. [Insert third choice]
EIGHTH: Whenever in this Will it is provided that a beneficiary must survive me, the requirement of survivorship shall be interpreted to mean that beneficiary must survive me by thirty (30) days.
NINTH: I have intentionally omitted making provisions for all of my heirs who are not specifically granted or bequeathed some of my property herein. I hereby generally and specifically disinherit each, every and all persons whomsoever claiming to be, or who may lawfully be determined to be my heirs at law, except such as are mentioned in this Will, and if any such persons, or such heirs, or devisees, or legatees, or beneficiaries under this Will shall contest in any Court any of the provisions of this instrument, or shall not defend or assist in good faith in the defense of any and all such contests, then each and all of such persons shall not be entitled to any devises, legacies, or benefits under this Will or any Codicil hereto.
I subscribe my name to this Will on , at , California.
[Insert Your Name & Sign Above]