Tracy, one of my clients and a good friend, always had a close relationship with her mother, Ellie, since Tracy is an only child and her father had passed away when she was very young. As a result, they were a close-knit, mother-daughter team facing the world together. In late 2013, Ellie was diagnosed with Stage 4 cancer which rapidly spread throughout her internal organs. Ellie lived in a rent-controlled building in Manhattan, never drove a car, had a single bank and retirement account, a life insurance policy, and other miscellaneous personal possessions. Because Ellie had minimal assets, she never saw the importance of drafting a will.
Consequently, Ellie assumed that it would not be a problem, because upon Ellie's death all her assets would pass to her only child, Tracy. She also did not think a will would be helpful in her situation where there would be no other beneficiaries to be named to split any of her estate. She just did not think it was necessary to write anything down in a will memorializing her wishes, since her estate seemed simple and straightforward.
In November 2014, Ellie passed away after a courageous fight against cancer. During the year before her death, she spent as much time as possible with her close friends and family, even reconnecting with her only brother, Howard, from whom she was distanced from for many years. This was a special time for Ellie allowing her to stay positive and to focus on quality relationships.
Upon her death and without a will expressly stating Ellie’s wishes and desires, Tracy planned the cremation and intimate memorial service at Ellie’s local parish where she frequented during the last years of her life. However, her Uncle Howard, Ellie’s brother, vigorously disagreed with Tracy’s plan and instead decided to plan a memorial service at their childhood parish in a different part of New York City.
The two different memorials caused chaos and confusion among Ellie’s family members and friends. The separate invitations from Uncle Howard and from Tracy demonstrated the lack of unity between the two relatives who both felt that they knew what Ellie’s desired wishes were for her memorial service.
In the end, Uncle Howard canceled his service after receiving pressure to do so from the family who sided with Tracy, but this family war over what Ellie’s last wishes were created a lasting rift among them.
What would have been the simple solution? If Ellie had outlined her wishes regarding her memorial service and other details in a will, this would have prevented a family war pitting her loved ones against each other.
In another instance, Kelly, a close friend of mine, recently called me to let me know that her father, John, passed away without a will. As a result, she and her step-mother are now in a battle over a few of his personal items, such as his school diplomas and class ring, with little monetary value but high sentimental value. Both claim that John told each of them in private conversations that those items would pass to them, but without a will, who can be sure?
In the state of California, a will is valid if drafted while you are in sound mind and not under undue influence with two neutral, adult witnesses, who are not your beneficiaries. Or, you can draft a holographic will, which must be completely handwritten by you and signed and dated with legible instructions. Holographic wills do not require witnesses or a notarized signature.
Comprehensive wills should outline the following: 1) full names of your beneficiaries and their relationships to you; 2) division of property and assets to your beneficiaries; 3) any specific bequests or gifts to any person or charity; 4) appointment of guardians if you have minor children; 5) name of an executor who will administer your will; and 6) any other requests or wishes upon your death, such as cremation; and 7) burial and memorial service details.
Furthermore, your property in a will up to $100,000 is subject to a state law exemption, so no probate fees or costs are assessed. In order for your beneficiaries or heirs to avoid these expensive probate fees, it is typically recommended for you to have a living trust in addition to a will for your estate over $100,000.
Ultimately, drafting a proper will can give you not only peace of mind but can help keep the peace between your loved ones and prevent any family wars. It can ensure that there is no ambiguity regarding your wishes and allows you to control your legacy with minimal conflict.