JohnAlanCohan@aol.com 310.278.0203 Probate/Conservatorships IRS Audits IRS Collection IRS Appeals U.S. Tax Court IRS Criminal Investigation Tax Litigation Tax Opinion Letters Business Plans Aviation Law Tax Exempt/Nonprofit Organizations All aspects of equine and livestock law, particularly tax matters, syndications, business plans, tax opinion letters, and drafting of business documents.		The Importance of Wills by John Alan Cohan, Attorney at Law Quite often the implementation of a simple Will is neglected until it is too late to protect one’s family and loved ones. If you die without a Will, state law determines who gets your estate. The absence of a will can mean that money and property will go to distant relatives, cousins, or even half-blood relatives or step-relatives. And if you have no living relatives, the state gets everything you own. Friends, charities and others who are not relatives won’t inherit anything if you die without a Will. The only way to insure that your money and property will be transferred on death in accordance with your expectations is to have a properly drafted and executed Will or living trust. A Will does not have to be complex, and frequently it can be simple, brief and to the point. Wills constitute the most important yet least costly legal document you may ever have. Living trusts are often favored because this procedure can avoid probate court and is difficult or impossible for relatives to contest in court. A living trust is a private instrument giving your successor trustee (usually your spouse or other principal heir) the immediate right to have access to and control over your property. There are a number of popular misconceptions about living trusts, and you should beware of claims that promise substantial savings in taxes or otherwise, because the claims are generally false. Also, watch out for law firms that are “trust mills”--in other words, that’s practically all that they do. In California a Statutory Will form is available in stationery stores, but is designed primarily for married couples. I was surprised to learn that some attorneys who are inexperienced in estate planning use the statutory form as a guide for themselves. An alarming number of statutory form wills are not properly filled out, and the danger here is that the slightest defect can render the Will invalid. With a Will or living trust is it essential to name a trusted person as your executor or successor trustee. That person is usually a principal heir. He or she is given very broad rights, and considerable problems could arise if that person turns out to be untrustworthy. Certain items of property, such as a home held in joint tenancy, cannot be disposed of by Will. Also, life insurance proceeds normally are distributed automatically pursuant to the beneficiary designation on the policy, unless you state that the proceeds go “to my estate,” in which case the matter ends up in probate court. For many nonmarried coules joint tenancy is not the proper way to own property for various tax and nontax reasons. The entire joint tenancy property can be subject to creditors’ claims, alimony payments, child support payments, or tax liens of one joint tenant, tying up the entire property, and one party can unilaterally and secretly sever the joint tenancy property without the other’s consent. It is preferable for nonmarried couples to hold real property in co-tenancy. Nonmarried partners who intend to leave their estates to their partners need to construct ironclad documents, particularly where there is reason to think that excluded blood relatives might try and challenge the Will. If you have an elderly parent who does not have a Will or living trust, it is advisable for that person to execute a Will before the onset of potential symptoms such as dementia, for someone who suffers from dementia could be a candidate for a will contest based on a claim that he lacks testamentary capacity. Making a Will is one of the most important things a person does during his or her lifetime. The Will should be written in non-provocative language, explaining why certain persons have been excluded or given nominal gifts. The Will should have no interlineations, mark-outs, erasures, or corrections. There should be no misspellings, omissions, erasures or inadvertent errors. The document must be perfect. All pages must be typed on the same kind of paper with consistent font style and size. Each page must be properly numbered, and there should be no excessive blank spaces. If the pages of the Will are stapled, the staples should never be removed; multiple staple holes may be evidence of improper page substitution. A handwritten (holographic) Will is usually only for emergency purposes, and it is fraught with the possibility of error and being contested. A valid holographic Will must be entirely in the handwriting of the testator, it must express testamentary intention, and must be dated. Back to Top