Elder Law | Avoiding pitfalls when planning for the future - Vacaville Reporter

Dear Len & Rosie,

My sister is planning to write her will and give her house to me upon her death. She already has advance directive. She nor I can afford to retain an attorney for their services. She wants to write what she wants and have it notarized. Her house is her only asset. I realize since you are attorneys, it’s a given that you advise, no, don’t do that. We just plain cannot afford legal services. Will a notarized will be a problem? There is no one to contest her decision so that would not be an issue. Should we use one of those digitized form templates and have that notarized? Thank you in advance.

Maria,

Dear Maria,

Our advice in this column is always at no charge. We write the column to inform the public of their options regarding estate planning and some common pitfalls to avoid.

Wills are not notarized in California, ever. Wills must be witnessed by two adults who are not inheriting under the will. If your sister wants a cheap and easy will, she can download one from the California State Bar webpage at www.calbar.ca.gov. Or she can just email us and we’ll email her the form.

The problem with wills is that they do not avoid probate, which is every expensive and takes one to two years to complete. If your sister wants to avoid probate, she has a couple of more options. One is to sign and record a Revocable Transfer On Death (TOD) Deed from herself to you. She can have a lawyer prepare the deed, or she could pay a Title Insurance Company to do is for her. We don’t recommend doing it yourselves, because it’s way too easy to make expensive mistakes when drafting deeds.

There is an alternative that may be better for you. If you both reside in the home, your sister can add you to the deed as a Joint Tenant. If she does, and she dies at least a year after you were added on title, then you’ll be able to keep your sister’s Prop 13 protected tax assessment upon her death, because of the transfer exemption between cohabitants. The downside is that if your sister changes her mind she’ll have a fight on her hands with you, if you don’t agree to give her back your interest in the home.

Your sister, and you for that matter, should also have a Durable Power of Attorney in addition to her will and advance health care directive. While she can have a lawyer prepare one for not much money, there are also forms available for this on the internet. She should look for the California Statutory Durable General Power of Attorney online.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at Tillem McNichol & Brown, 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at lentillem.com.

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