Legal Question in Wills and Trusts in California
Husband had a 32 year old will
My husband suddenly died in July. We had reviewed drafts of our trust but hadn't signed them, agreeing in the presence of our attorney and on paper, as to the disposition of our assets -- to each other and then to the 6 kids equally (4 his, 2 mine). I am beneficiary of his life insurance and 40lk. We hold title on our home as ''John Smith, a widower and Mary Adams, a widow, as joint tenants,'' because we were not married when we purchased it. He told me and our attorney that he had no will. However, I just came across a one-page typewritten document headed LAST WILL AND TESTAMENT, signed by John and three witnesses dated 1973 in which he ''gives, devises, and bequeaths any and all property, real, personal, and mixed of whatsoever kind...which I own or have an interest in, to my children (defined as those borne with his deceased wife) in equal shares, absolutely and in fee simple.'' There is no attorney signature, info, no seal. I am on good terms with his kids, want to do what is moral and legal. Does naming me as his beneficiary and joint tenant override the old will? I am in my mid-fifties and need to maximize the assets I have to insure my future. What would the attorney be required to do if I tell her about John's ''will''?
3 Answers from Attorneys
Re: Husband had a 32 year old will
While the will might be valid, the naming of beneficiaries in things such as life insurance and 401k takes presidence over the terms of a will. Furthermore, the fact that you were joint tenants is automatic right of survivorship to the other joint tenant (you).
Since you are on good terms, what would make sense if for you to go ahead and complete the trust as you had both agreed upon, dividing the joint estate after your death as you described.
Re: Husband had a 32 year old will
Based upon your information, the joint tenancy title to the house and the beneficiary designations in the 401k/IRA documents and life insurance policy control over the will regardless whether the will states to the contrary in general or specific terms.
The will, which appears to be valid, needs to be "lodged" with the court within 30 days of death.
I suggest you contact an attorney to further assist you in these matters, and also to complete you estate plan.
Kai H. Wessels, Esq.,
tel: (408) 268-2580
Re: Husband had a 32 year old will
Any person with custody of an original will of a person who has died is obligated to, within 30 days of the decedent's death, lodge the will with the clerk of the superior court for the county where the decedent lived. This does not open a probate, just deposits the will with the court for safekeeping. If you give the will to the attorney, presumably that's what she will do with it.
It sounds like the will is likely valid - in California, a will does not need to be notarized, have attorney information attached, or to have any special seal or stamp. It does need to be witnessed by at least two people, or else the dispositive parts need to be in the decedent's own handwriting.
However, the will does not change the beneficiary designations on the life insurance or 401(k), and it does not change the joint tenancy ownership of the house. You do not need to be concerned that those items aren't yours - they are yours.
Also, because your late husband married you after he made that will, you are treated as an "omitted spouse" - that means that even assuming the will is valid, you are entitled to the share of your husband's estate that you would be entitled to if he had died without a will.
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