Video Wills in California, are they legal?

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?

Lupe

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 your kindness.

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 cannot replace a written will, but a video 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 from www.lentillem.com.

Len & Rosie

Husband passed away before an Estate plan was put into place.

Dear Len and Rosie,

My husband passed away recently We have no will or trust at this time. We understood that as long as there was a surviving spouse you didn't need one of these items that everything automatically passed to the surviving spouse. This was the case when my mother-in-law passed and her husband was the surviving spouseNothing would go through probate. Is this accurate or not? Please help.

Linda

Dear Linda,

Please accept our condolences for your loss. Chances are more than likely that everything now belongs to you, but it really depends on how you and your husband held title to your home and your other assets, and whether or not he owned any separate property. Any accounts that you and your husband held in both of your names now belong to you.

When you order death certificates, get one for your home, and one for each financial institution, life insurance company and retirement account you will have to deal with. You will need to remove your husband’s name from the title of all of your jointly held accounts and make sure they are under your Social Security Number, not your husband’s. The banks are familiar with this and will know what to do. However, keep your husband’s name on one of your joint accounts for a few months, so you’ll be able to deposit any checks made out to him that come in the mail.

Most married couples, when buying their homes, have them titled in Joint Tenancy. If this is the case, then you will need to sign and record an Affidavit of Death of Joint Tenant to remove your husband’s name from the title of your home. If your home is not held in Joint Tenancy, or Community Property With Right of Survivorship ("CPWROS"), then it becomes more complicated.

Any assets titled solely in his name shall pass by intestate succession, the law that determines who gets what when someone dies intestate. As his widow, you inherit all of the Community Property, but any Separate Property (assets he owned prior to the marriage or assets he inherited), is inherited by you and his children - or even his parents or siblings if he had no children.

What you really need to do is to gather up the most recent account statements for all of you and your husband’s accounts, together with the deed to your home, if you can find it, and consult with a trusts and estates attorney. He or she will be able to help you figure it all out. If there are assets titled solely in your husband’s name, it may be necessary to file for probate, or if it’s all Community Property, you can file a Spousal Property Petition to obtain a court order confirming your ownership.

When you meet with the attorney, look to your own estate plan. You may need a trust to avoid probate, and you definitely need a Durable General Power of Attorney and an Advance Health Care Directive so that persons you trust can handle your affairs should you ever become incapacitated.

Len & Rosie