Handwritten changes to estate documents

Q: I have my estate planning documents and, boy, did I pay dearly for them! I am leaving everything to six friends and some members of my family. It kind of irks me that if I want to change the percentages or take someone out, I need to go back to the attorney and pay again. Why can't I just line through a distribution or change a name and then date and initial the changes? I heard that holographic wills are legal in some states so why does the attorney say I can't handwrite changes?

A: First, you have a couple of things confused: You are asking if you can write in changes to your trust and then you mention that a holographic (handwritten) will is legal in some states. A will and a trust are two different legal instruments. A trust is a legal agreement that you enter into and that is immediately “active.” The trust agreement states that you are the trustor or settlor — in other words, the maker of the agreement and, usually, you are the trustee. Immediately upon signing the trust, it is a living document. A will is where you state you are making a will to leave your estate to certain people or charities after you die. Only on your death does the will become active. At that time the named executor gets appointed by the court and carries out the administration of your estate.

In many states, California is one of them, a handwritten will is legal, provided it meets certain legal requirements. These requirements include, among other things, that the signature and material provisions of the will are in the handwriting of the maker of the will. At this time, a holographic trust agreement is not recognized. The same laws that apply to a will do not always apply to a trust agreement.

I do not advocate for anyone doing their own documents, handwritten or otherwise. As I have said numerous times, the trust and estates area of the law is the most highly litigated area of law — there are so many ways to go wrong! Many of the problems arise because when money comes into the picture, as it does in an estate situation, potential inheritors not only fear the potential for financial loss, but also the emotional aspects of losing “what is rightfully mine.” Fear of loss and the heartbreak of losing “my family money” often motivate potential inheritors to seek legal counsel and litigation. Think about it, if you are an only child and your parents decided to leave everything to the gardener, would you be motivated to pursue legal advice?

One of the benefits of seeing an attorney when you want to make changes is that the attorney is legally and morally bound to make sure you understand the implications of the changes you wish to make and that you have the mental capacity to make the changes. Also,

the attorney will attempt to determine if you are being influenced by others to make changes.

All this information goes into the attorney's files and, if a question comes up later, the attorney's notes are valuable evidence that you did, in fact, understand the changes you were making and that you were not being influenced by another to make them. These notes are very helpful should a will or trust contest arise down the road. Do not be penny wise and pound foolish, a will or trust contest can cost hundreds of thousands of dollars. Better to be safe, than sorry.

Liza Horvath has over 30 years of experience in the estate planning and trust fields and is a licensed professional fiduciary. Liza currently serves as president of Monterey Trust Management. This is not intended to be legal or tax advice. If you have a question, call (831) 6465262 or email liza@ montereytrust.com