Can a holographic will override a will created by an attorney?

[Mulina Swanson]

Jurisdiction

California

Many years back I had an attorney create a trust and a will for me. I no longer want my assets to go to the beneficiary of my current will. I'm in CA. I am going through a lot in these next couple years and do not have time to visit an attorney to revamp the will, but having it unchanged in the meantime makes me uneasy. Can I handwrite a new will, and leave it somewhere in my home where it is likely to be found?

A related question: Is there any way to have a will's beneficiaries refer to a Schedule or something of the sort, so that in the future I can change beneficiaries without the time and expense of going through a lawyer?

 

[adjusterjack]

In California a holographic will supersedes previous wills if the holographic will conforms to the statutory requirements of CA Probate Code Section 6111.

2022 California Code :: Probate Code - PROB :: DIVISION 6 - WILLS AND INTESTATE SUCCESSION :: PART 1 - WILLS :: CHAPTER 2 - Execution of Wills :: Section 6111.

Cal. PROB Code § 6111 - 6111. (a) A will that does not comply with Section 6110 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.(b) If

law.justia.com

Make sure the previously will and any copies are destroyed.

Yes, you can refer to a schedule of items, AKA Personal Property Memorandum.

The following article explains.

Understanding The Basics Of A Personal Property Memorandum

News & insights from Darcie Colihan of LGC

www.lgclawoffice.com

 

[Tax Counsel]

Can I handwrite a new will, and leave it somewhere in my home where it is likely to be found?

You may do that. California recognizes holographic will. See CA Probate Code § 6111 which sets out what the basic requirements are. The writing should make it very clear that it is intended to be your will. If the holographic will survives any challenges to it, like claims you were not competent when you executed the will, it's not your handwriting, etc., then it would supersede the present will you have.

A related question: Is there any way to have a will's beneficiaries refer to a Schedule or something of the sort, so that in the future I can change beneficiaries without the time and expense of going through a lawyer?

California is one of the states that allows you to distribute personal property other than money in a separate personal property memorandum. The will must indicate that personal property will be distributed by as specified in that memorandum. In a holographic will I'd suggest that the memorandum also be handwritten. You may revise that schedule as often as you want without redoing the will. But pay close attention to the limits on the value of the personal property that may be included in the memorandum. The rules for the memorandum are found in California Probate Code §§ 6130 - 6132.

 

[Mulina Swanson]

You may do that. California recognizes holographic will. See CA Probate Code § 6111 which sets out what the basic requirements are. The writing should make it very clear that it is intended to be your will. If the holographic will survives any challenges to it, like claims you were not competent when you executed the will, it's not your handwriting, etc., then it would supersede the present will you have.



California is one of the states that allows you to distribute personal property other than money in a separate personal property memorandum. The will must indicate that personal property will be distributed by as specified in that memorandum. In a holographic will I'd suggest that the memorandum also be handwritten. You may revise that schedule as often as you want without redoing the will. But pay close attention to the limits on the value of the personal property that may be included in the memorandum. The rules for the memorandum are found in California Probate Code §§ 6130 - 6132.

Thank you and also @adjusterjack for your very helpful responses! My most valuable property is a house and quite a bit of equities (mutual funds) which I assume counts as money, but I'll read the resources you've both provided to get more details. Thanks a ton.

 

[Mulina Swanson]

In California a holographic will supersedes previous wills if the holographic will conforms to the statutory requirements of CA Probate Code Section 6111.

2022 California Code :: Probate Code - PROB :: DIVISION 6 - WILLS AND INTESTATE SUCCESSION :: PART 1 - WILLS :: CHAPTER 2 - Execution of Wills :: Section 6111.

Cal. PROB Code § 6111 - 6111. (a) A will that does not comply with Section 6110 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.(b) If

law.justia.com

Make sure the previously will and any copies are destroyed.

Yes, you can refer to a schedule of items, AKA Personal Property Memorandum.

The following article explains.

Understanding The Basics Of A Personal Property Memorandum

News & insights from Darcie Colihan of LGC

www.lgclawoffice.com

I just want to make sure by "destroyed" I'm understand you correctly - that I should destroy all the hard copies lying around. I have copies saved on my computer, too, though I could add something to them to the effect that I've written a will that supersedes them. (Or should I just delete them from my computer?)

 

[army judge]

Many years back I had an attorney create a trust and a will for me. I no longer want my assets to go to the beneficiary of my current will.

I suggest you consult a couple of estate or trust attorneys, because a holographic will ALONE won't unravel the trust that was created. The sooner you address the trust to match your current desires regarding asset distribution, the sooner you can rest easier, knowing your wishes will be carried out to your satisfaction upon your demise.

 

[army judge]

Can I handwrite a new will, and leave it somewhere in my home where it is likely to be found?

Leaving your holographic will in your bureau or desk drawer isn't a good idea.

Why?

The sad story regarding the death of industrialist, flight enthusiast and movie mogul Howard Hughes you'll find most enlightening, just in case you don't recall his tragic death and the back story behind the purported holographic will 47 years ago.

Consider, if you will, what if the WRONG person finds the holographic will and simply destroys it?

You might want to consider putting several copies of your holographic will in several secure places.

1=For example, a wall safe in your home.

2=A copy placed in a safe deposit box located at your bank.

3=A copy left with a trust or law firm.

4=A copy with a trusted friend, business associate, or relative.

Just a few examples to get you thinking.

Remembering the Howard Hughes “Mormon Will” - Mormon Matters

Back in 1976, it looked like the LDS Church was going to enjoy a $156 million windfall. The reason? It was the death of billionaire industrialist Howard Hughes, who apparently executed a will leaving one-sixteenth of his estate to the Mormon Church and another one-sixteenth to a man named Melvin...

www.mormonmatters.org

Howard Hughes' Will | Encyclopedia.com

Howard Hughes' Will Howard Hughes, Jr. (1905–1976), an aviator, film producer, and manufacturer, died a multibillionaire. Unmarried and childless, Hughes left no clear heir. Source for information on Howard Hughes' Will: World of Forensic Science dictionary.

www.encyclopedia.com

Howard Hughes Estate Settled… After 34 Years - The Law Offices of Jeffrey G. Marsocci, PLLC

The eccentric aviator, engineer, and film producer, died on April 5, 1976, without even a Will. What happened with the Howard Hughes estate?

livingtrustlawfirm.com

 

[adjusterjack]

My most valuable property is a house

Look into a Revocable Transfer on Death Deed for your house.

Transfer on Death (TOD) Deed: Naming Beneficiaries and Revoking TOD Deeds

Background The “Revocable Transfer on Death Deed,” also called “TOD Deed” or “beneficiary deed,” is a simple way to leave … Continue reading "Transfer on Death (TOD) Deed: Naming Beneficiaries and Revoking TOD Deeds"

saclaw.org

It allows the house to bypass expensive and time-consuming probate and uses standard forms which can be revoked and re-recorded without the expense and delay of using an attorney.

quite a bit of equities (mutual funds) which I assume counts as money,

Those accounts should have a beneficiary designated. The accounts automatically go to the beneficiary. Also avoids the expense of probate. Beneficiaries can be changed instantly by submitted a form to the custodian/broker.

should I just delete them from my computer?

Yes.

 

[Mulina Swanson]

Look into a Revocable Transfer on Death Deed for your house.

Transfer on Death (TOD) Deed: Naming Beneficiaries and Revoking TOD Deeds

Background The “Revocable Transfer on Death Deed,” also called “TOD Deed” or “beneficiary deed,” is a simple way to leave … Continue reading "Transfer on Death (TOD) Deed: Naming Beneficiaries and Revoking TOD Deeds"

saclaw.org

It allows the house to bypass expensive and time-consuming probate and uses standard forms which can be revoked and re-recorded without the expense and delay of using an attorney.



Those accounts should have a beneficiary designated. The accounts automatically go to the beneficiary. Also avoids the expense of probate. Beneficiaries can be changed instantly by submitted a form to the custodian/broker.



Yes.

Thank you. Currently the beneficiary of the equities is my Trust.

This is extremely helpful info you've provided as basically all my wealth is in a house and the equities.

 

[Mulina Swanson]

Leaving your holographic will in your bureau or desk drawer isn't a good idea.

Why?

The sad story regarding the death of industrialist, flight enthusiast and movie mogul Howard Hughes you'll find most enlightening, just in case you don't recall his tragic death and the back story behind the purported holographic will 47 years ago.

Consider, if you will, what if the WRONG person finds the holographic will and simply destroys it?

You might want to consider putting several copies of your holographic will in several secure places.

1=For example, a wall safe in your home.

2=A copy placed in a safe deposit box located at your bank.

3=A copy left with a trust or law firm.

4=A copy with a trusted friend, business associate, or relative.

Just a few examples to get you thinking.

Remembering the Howard Hughes “Mormon Will” - Mormon Matters

Back in 1976, it looked like the LDS Church was going to enjoy a $156 million windfall. The reason? It was the death of billionaire industrialist Howard Hughes, who apparently executed a will leaving one-sixteenth of his estate to the Mormon Church and another one-sixteenth to a man named Melvin...

www.mormonmatters.org

Howard Hughes' Will | Encyclopedia.com

Howard Hughes' Will Howard Hughes, Jr. (1905–1976), an aviator, film producer, and manufacturer, died a multibillionaire. Unmarried and childless, Hughes left no clear heir. Source for information on Howard Hughes' Will: World of Forensic Science dictionary.

www.encyclopedia.com

Howard Hughes Estate Settled… After 34 Years - The Law Offices of Jeffrey G. Marsocci, PLLC

The eccentric aviator, engineer, and film producer, died on April 5, 1976, without even a Will. What happened with the Howard Hughes estate?

livingtrustlawfirm.com

Thanks; I appreciate it.

 

[adjusterjack]

Currently the beneficiary of the equities is my Trust.

Please clarify.

Are the equity accounts in your name (owned by you) or in the name of the trust (owned by the trust)?

 

[zddoodah]

Many years back I had an attorney create a trust and a will for me. I no longer want my assets to go to the beneficiary of my current will.

Just to be clear, you only want to modify the will and not the trust?

Can I handwrite a new will, and leave it somewhere in my home where it is likely to be found?

We have no reason to believe you lack that ability. I assume what you actually intended to ask was whether such a handwritten will will be valid and supersede your existing will. Aside from reading section 6111 of the Probate Code (as has already been recommended), you may want to consider destroying the old will. Of course, since we don't know how your current will and trust work together, it would be foolish for someone to recommend that you do that.

Is there any way to have a will's beneficiaries refer to a Schedule or something of the sort, so that in the future I can change beneficiaries without the time and expense of going through a lawyer?

I don't really understand the question, but you can change your beneficiaries anytime you want by creating codicils.

My most valuable property is a house and quite a bit of equities (mutual funds) which I assume counts as money

If you own real property and don't have it in your trust, then I have to question why you have a trust at all. As for the mutual funds, do they have beneficiary designations? If so, then they will not be part of your probate estate that is covered by your will.

Reading your posts in totality, I think it would be wise for you to have a comprehensive estate planning review done by a local attorney. It's not the sort of thing that will take much time.