What should you do if you lose your estate plan?

Dear Readers:

Many of you may have been adversely affected by the Northern California fires that started in the early hours of Monday, October 9, which are still ongoing as this is written. We have already had several calls from clients and their families reporting the loss of their homes due to fire. Such a catastrophe often results in the loss of important estate planning documents as well.

So, what should you do if you lose your estate plan?

Most of the time, as long as you can get a hold of a copy of your estate plan, it will be alright. If you have a trust, the loss or destruction of your original trust document does not revoke or otherwise eliminate the trust. It will still remain in full force and effect. If you lose your documents, contact your attorney. he or she should maintain a copy of all estate planning documents created by the firm, so it’s usually easy enough to get a copy from him or her.

It is also a very good idea to obtain a digital copy of your documents for safe keeping in case your lawyer’s records are also lost or destroyed. You can have your estate plan scanned and emailed to you, and you can forward a digital copy to everyone you want, such as some or all of your children. This way, even if all physical copies are lost, the details of your estate plan will still exist.

Don’t worry so much about the deed to your home. If your deed has been recorded at the County Recorder’s office, then the original physical document is no longer very important. And these days, the County’s records are backed up digitally as well, so even if the Recorder’s office burns down, proof of your ownership of your home will not be lost.

In your estate plan, there are two documents of which the original documents are very important and ought to be stored someplace safe, such as a safe deposit box or fireproof safe. You need to keep a hold of your original Durable Power of Attorney. Banks and other financial institutions usually do not accept copies, although your attorney or a Notary Public can make certified copies for you if they inspect your original DPOA first.

Your original will is also important. It is possible to probate a photocopy of a will if the original is lost in a fire or other disaster, but this is a bit more complicated and give persons challenging the will an opening to claim that the will was revoked by you instead of being destroyed in a fire. What this really means is that if you lose your original will, you should see your attorney, who should be able to reprint the will with today’s date on it and let you sign it again.

The most important thing to remember is that it’s only money. Whatever you do, don’t rush into a burning home or delay an evacuation to gather your trust documents. Keep it in perspective. Your health and safety are far more important.

Len & Rosie

Is your self-made Will valid?

Dear Len & Rosie,

I have some thought and worries about wills and probate. I have two pieces of property, each valued at $600,000 or so. I made out a will this year, copying most everything from a book at the library. Is my will good? I have enclosed a copy of my will and my property tax bills.

Lester

Dear Lester,

We read the photocopy of the will you sent with your letter. Your will is entirely typewritten, except for your signature at the bottom of the page. It has not been witnessed. This means that your homemade will won’t work. People like you make lawyers a lot of money.

There are two types of wills: attested wills, and holographic wills. Attested, or witnessed wills, are not valid unless the signature of the person making the will is witnessed by two adult witnesses who do not inherit anything under the will.

Holographic wills do not need to be witnessed, but they must be handwritten by the person making the will. California law recognizes holographic wills, because as it is much more difficult to forge an entire handwritten document instead of just an unwitnessed signature.

Even if your will was validly executed, there are other problems with it, too many to go into in this space. We are also sure that you do not want all of our readers looking at your will. However, your will raises an important issue. Your will doesn’t give away your entire estate. There are a number of specified gifts, but there’s no “residue” clause giving away what’s left, if anything, after the specific gifts are fulfilled.

There is one saving grace. Your real estate is titled in joint tenancy with your wife, according to the property tax bills you sent us. When one of you dies, the surviving spouse will own both properties without going through probate.

If you make your own will, you are taking a big risk. Wills are very formal instruments and must be properly executed to be valid. It is very easy to make mistakes in drafting wills. Look at what you did. You do not want your loved ones to have problems probating your estate just because you wanted to save a few bucks. Wills are also cheap, and your attorney will even keep your wills for safekeeping for no charge, just on the chance he or she will pick up an nice fat probate after you die.

You should see an estate planning attorney about making a new will, and you should also consider a revocable trust. Probate will take more time and cost more money than it would to administer a trust after your death. The statutory attorney fees on your real property would be $25,000, and that does not count the rest of the assets you own.

Len & Rosie