California Estate Planning Attorney Blog

The July 2010 issue of the California Bar Journal discussed the continuing effort to protect the public from lawyers who take advantage of distressed homeowners. The State Bar prosecutor's office secured orders of involuntary inactive enrollment for three Southern California attorneys and obtained the resignations of 13 attorneys involved in foreclosure misconduct since creation of the Loan Modification Task Force in April 2009. Five loan modification trials and 2,000 related investigations are pending.

It is news like this that makes people think twice about hiring a lawyer to assist in foreclosures, bankruptcies, or estate planning. Lawyers are specially trained in the law and court system, but not all attorneys have the best interests of clients in mind when handling their estate planning, bankruptcy, or foreclosure concerns.

The State Bar of California web site provides tips on how a person in or about Fairfield, Sacramento, San Francisco, Oakland, Walnut Creek would go about hiring a lawyer. Some lawyers take on a volume of cases in hopes of profiting on legal fees with little care for the requests of clients, and when the clients disagree on settlement or case resolution, the lawyer may threaten to withdraw leaving the client at a critical moment with no attorney or the burden of having to find another attorney to come up to speed. Without knowing that this may be an ethics violation, the client may go along with the attorney's decision to earn trust or to have what little legal protection he can get.

In bankruptcy, foreclosure, or estate planning, it is easy for an attorney to take on a quantity of cases even when the attorney does not have offices where the client lives. These attorneys generate business through seminars on financial or estate planning topics. These attorneys may take their fees upfront and then leave their clients' phone calls unanswered or directed to a secretary or non-attorney for the remainder of the case. For court hearings, the attorney may send a special appearance attorney who does not have depth in the case, and can only take notes. Sometimes the trustee during a bankruptcy 341 hearing even asks why a debtor chooses an attorney that is so far away that the debtor cannot meet the lawyer in person.

Though many attorneys give free initial consultations for estate planning, bankruptcies, or foreclosures, few attorneys desire to give free legal advice for fear of malpractice. When thinking of hiring an attorney, a potential client may be more prepared to be informed at an initial consultation by first researching legal issues on his own through consumer books like Nolo Press publications or on the Internet so he is prepared on what he wants to accomplish and the facts to gather for his case.

While a lawyer can help people understand their rights, a lawyer is not a friend. Sometimes with the duty to protect confidential information, people mistake a lawyer to be a buddy, but the lawyer is a professional who sees a case as work to be done. The relationship might turn into a friendship, but attorneys look to close matters and move on to the next so do not expect an attorney to help much during an emotional breakdown. Call the police if there is potential violence or stalking from the opposing party, not the attorney. Most attorneys care about the representation they are paid to handle, but attorneys are human too, with other work on the plate and their own family and personal problems.

Continue reading "Hiring A Lawyer - Fairfield" »

Under California law, in order for a formal will to be valid, the will: (1) must be in writing signed by the testator, or by someone at his direction and in his presence; (2) must be signed in the presence of two disinterested witnesses who understand that they are witnessing the execution of a will.

For example, a typewritten will meets the writing requirement. If Testator suffered from severe tremors, he could ask his attendant, to help him execute his will in Testator's presence and at his direction.

A valid will may revoke a valid prior will if the testator indicates the intent to do so. To revoke a prior will, a new will needs to conform with the same requirements as the prior will to be valid and effectively revoke the prior will. When a testator fails to validly execute a new will, the prior will not be revoked.

Under California law, witnesses do not need to be at each other's presence, but the witnesses each need to see a testator sign the document purported to be the will. There is no requirement for the witness of a will to know the contents of the will, but the witness must understand the document to be the testator's will.

To make sure a witness understands a document to be a testator's will, the testator should explain the purpose of the document to the witness prior to signing. If a witness signs a document too quickly, there might be question on whether the person understood what the document was.

A trust is a fiduciary relationship with respect to a settlor's property. The person creating the trust, the settlor, may create a testamentary trust through the provisions of his will. The trustee holds the property, the trust res, for the benefit of the beneficiaries. A trust requires: (1) an intent by the settlor to create the trust for a valid, legal purpose; (2) trust res; (3) beneficiaries; (4) a trustee; and (5) valid delivery of the trust property to the trustee.

A charitable trust is a trust that is created in order to benefit society, such as public health and welfare. When a trust benefits society, it does not have any specific individuals who are beneficiaries. All persons who fall within the class described in the trust receive the trust benefits.

Under the cy pres doctrine, a court has the equitable power to give effect to a charitable trust where the trust purpose would otherwise fail as long as the court only changes the mechanism of carrying out the goals of the trust as opposed to the trust beneficiaries. A court has cy pres powers to effect a charitable trust where the settlor manifested a general charitable intent as opposed to a specific charitable intent.

Continue reading "Wills and Trusts in California" »

Legal guidance in estate planning requires an attorney who follows principles of professional responsibility. For instance, an attorney should not do a will for someone who appears incompetent. This creates havoc for the attorney in possible malpractice, and the family in a possible lawsuit from a beneficiary in a will contest.

California Probate Code Section 812 details evidence of a person's incapacity. Factors include: arousal, alertness and attention, orientation to time, ability to concentrate, immediate recall, recognition of objects, ability to appreciate quantities.

Mental competence to make a will is determined by looking to the time the will is executed to see if the individual understands the nature of the testamentary act, the person's property, and the person's relations with his/her spouse, parents, and others with interests in the will.

An attorney who takes on estate planning matters must maintain confidentiality by not disclosing client information to other people including the family relatives and friends of the client. The attorney-client privilege is detailed in California Evidence Code Section 952. Unless there is a law that requires an attorney to reveal a client's confidences, the attorney cannot disclose client communication. The duty of confidentiality stems from the duty of loyalty to protect a client from adverse interests.

An attorney-client relationship does not require any formality or fee. It may be formed by the exchange of confidential information by the client, and the rendering of advice by the lawyer.

Continue reading "Ethical Issues in California Estate Planning" »

A conservatee is someone who lacks capacity to contract. The person may have financial problems in not being able to manage resources or not resisting fraud or undue influence. For someone disabled, he might be an endangerment to himself or others. The proposed conservatee has a right to be represented by legal counsel according to California Probate Code. If he/she does not have an attorney, the court may appoint a Public Defender, or a private attorney from a panel.

The conservatorship proceeding may start with Judicial Council Forms to petition the appointment of a conservator. Who to choose as a conservator depends on the duration of a disability, the nature of the family relationship, the size and complexity of the estate, the attitude of the disabled person. A proposed conservatee may nominate a conservator in writing according to the California Probate Code, and the court will appoint the nominee unless the court finds the appointment not in the best interest of the proposed conservatee. All relatives within a second degreed are notified of the appointment hearings.

If the proposed conservatee does not nominate anyone to be a conservator, California statutes give preference to the following persons to serve as conservator: spouse, adult child, parent, sibling.

Once appointed, the conservator gets a handbook on his duties and liabilities. Some rules for the conservator are: he should not pay fees without a court order, he should not pay himself, he should not borrow funds from the conservatee. No fees are paid to the conservator without a court order.

The court may require the conservator to give a bond conditioned on the conservator following his duties.

The conservator has to file an accounting of the conservatee's estate after one year, and then biennially. The accounting is the job of the conservator not his attorney. Attorneys cannot get legal fees for doing the accounting. It is the conservator's responsibility to keep accurate records.

The conservatorship terminates upon the conservatee's death or court order when the conservatee regains capacity.

Continue reading "Conservatorships in California" »

What is a pourover will? A pourover will is like any other will, except that it has only one beneficiary, which is the testator's living trust. Usually a person who makes a trust also makes a pourover will. The pourover will transfers assets to the trust to ensure that these assets will be subject to the distribution plan in the trust and receive the benefit of trust's tax reduction provisions. This is because in a living trust, the person may forget to title his property in the trust. For example, someone opening a bank account may not think of the hassle of bringing trust documents to the bank for verification so he opens the account in his own name. When the person dies, the property not titled in the trust name is distributed by the pourover will.

The pourover trust pours assets into the trust.

The pourover will controls only probate assets. These are assets that are not in a trust, not in joint tenancy like a bank account with people's names, not inherited by a surviving spouse like a house titled with the right of survivorship, not insurance proceeds, and not in an IRA or 401K. Probate assets are generally titled in the name of the decedent only.

The assets in a pourover will may need to go through probate if it is real estate or add to up to more than $100,000. If the amount does not exceed $100,000, the assets can be transferred to the trust by using declarations as authorized by California Probate Code section 13100.

The pourover will distributes tangible personal property, such as furniture, jewelry, clothing, to the deceased person's beneficiaries. The will nominates executors and guardians for minor children. The pourover will revokes prior wills.

Continue reading "Pourover Will - Walnut Creek" »

A guardian takes care of a child's personal needs, including shelter, education, medical, and financial management for a child's assets. A guardianship allows a non-parent adult to have a legal relationship with a child. The child continues a legal relationship with the child's biological parents. The biological parents are still legally required to provide financial child support, and if a biological parent dies without a will, the child has intestate succession rights. Contrast with an adoption, a guardianship does not permanently require the biological parent to give up parental rights and obligations to the child.

A guardianship ordinarily lasts until the earliest of these events:

•child reaches 18
•child dies
•child's assets are used, or
•judge determines a guardianship is no longer necessary.

If a guardian no longer wants to serve, the guardianship may continue with a judge appointing a replacement guardian.

Sometimes parents need to establish guardianship for their own children. A guardian ad litem is a person appointed by the court to stand in place of a minor in a court proceeding in which the minor has some interest such as a divorce or custody. The court can appoint a guardian ad litem for an adult who isn't able to make decisions alone. The guardian ad litem may be a parent, close relative, or attorney. The guardian ad litem may investigate possible problems that could harm the child, such as drug or alcohol abuse or the battering of a spouse.

Another situation when a parent establishes guardianship for their own children is when the child has finances to manage. For example, the child star who has assets over $5000. A guardianship of the estate allows a parent to handle his own child's finances. The parents are accountable to a court to show how funds are spent and invested.

Continue reading "Guardianships in California" »

Life insurance is used in estate planning for support, education expenses, death taxes, and retirement. The main goal for insurance is to ensure beneficiaries are provided for. Proceeds from life insurance are received by the beneficiaries upon the death of the insured, but sometimes life insurance gets included in the decedent's estate when the proceeds are paid to the executor of the decedent's estate, the decedent at death possessed an incident of ownership in the policy, or there is a transfer of ownership within three years of death.

One type of insurance is the First-to-Die Life Insurance Policy, also known as joint whole life insurance. This is a group insurance policy where benefits are paid to the surviving insured on the death of one of the insured group members. A first-to-die policy can reduce taxes upon the death of the first spouse.

Another type of insurance is the Survivorship Life Insurance Policy, also know as second-to-die. This policy insures two or more people and pays out upon the last death instead of the first one. Because the benefit is not paid until the last insured dies, the life expectancy is greater and the premium lower. Survivorship policies are usually written to insure husband and wife or a parent and child. The premium on a second-to-die policy is based on a joint age.

If a life insurance policy is owned by the insured, he has control of the policy. If the spouse of the insured owns the policy, the insured has indirect control of the policy. If the spouse dies before the insured, the policy might revert to the insured and be included in his/her estate. If the children of the insured owned the policy, the death benefit would be included in the children's estate, not the parent's. The insured has no control over the policy, and if the children are minors it would require appointment of legal guardians before benefits can be paid. The policy might be owned by a revocable trust, where the insured might be in control of the policy and the death proceeds shielded from potential creditors of the insured. Because the insured has an incident of ownership through the revocable trust, the death benefit is includable in the insured's gross estate and could be accessible to the estate's creditors. If the policy is owned by an irrevocable trust, there is no inclusion in the gross estate, and the insured does not regain any control over the policy and cannot revoke the trust.

If an individual is named as beneficiary of a policy, the decedent cannot exert control over the death proceeds. The individual that inherits the death benefits can use the money for any reason.
If an estate is named beneficiary of the policy, the death benefits are includable in the decedent's gross estate and are subject to the e estate's creditors. If the beneficiary is an irrevocable trust, the trustee can distribute or withhold benefits available to the insured's estate, the assets are protected from creditors and the trust's assets can be assigned to professional money managers.

Continue reading "Life Insurance - Oakland" »

Rinne Legal offers a free initial consultation on estate planning to individuals in and around Walnut Creek, San Francisco, Fairfield, Oakland, and Sacramento. To prepare for a consultation, it helps to gather information on the three Ps: People, Property, Plan.

Who are the people in your life? First there is yourself, then your spouse if you are married. If your parents are alive, you might count them in on your estate plans. If you have brothers and sisters, you might want to take care of them. Besides individuals, you might want to leave some of your assets to charities, colleges, or churches. There are your children and grandchildren if you have any.

In California, non-marital children may inherit from the mother when there's parent-child relationship by the mother giving birth and from the father only if father acknowledged the child, subsequent marriage to the mother, or court decree of paternity. Laws allowing non-marital children to inherit from mothers and not fathers violate the US Constitution's equal protection clause.

If you die intestate, foster children and stepchildren are treated likewise if it's established the parent would've adopted but for a legal barrier. Non-marital children as a general rule may inherit from and through the mother but only from and through the father if paternity established by subsequent marriage of the parents, adjudication of paternity during father's lifetime or proof of paternity.

Next, make a list of the assets you own or control. Identify insurance policy numbers and exact dollar values. Write down notes on the cash, stocks, bonds, death benefits, real estate. Knowing the property allows someone to create special asset distribution mechanisms such as a life insurance trust where the trustee holds life insurance policy proceeds for beneficiaries. California allows a settlor to name the trustee of a life insurance policy in a will.

Finally, consider the plans you would make for the important people (including yourself) and the property inventoried in the event of incapacity or death. Who would you name to make decisions for you if you could no longer do so yourself on your medical and finances? Who would care for your children? How would you distribute your assets to heirs? Would you prefer to spare your heirs probate costs and time? Would you like to minimize the impact of estate taxes or gift taxes? Do you want the beneficiaries to know what you are leaving them or keep it a secret?

Continue reading "Initial Estate Planning Consultation - Walnut Creek" »

A charitable trust lets a settlor donate to a charity, and it gives the settlor and his heirs a tax break. Charitable trusts require someone to give up legal control of property because charitable trusts are irrevocable.

When a charitable trust is partly charitable and partly not, it does not qualify as charitable, unless the trust instrument allows for splitting into two trusts by dividing the corpus: 1) beneficiaries must be indefinite; where a specific individual is named, the trust is not charitable, even if the individual needs charitable assistance; 2) a charitable trust may be enforced by the Attorney General or a beneficiary acting with special interest in a trust; 3) legal title to trust res must vest in the trustee within the rules against perpetuities; once title vested, the rules of perpetuities does not apply when there is a shift from one charity to another, but applies if there is a shift from a charity to individual or vice versa.

The rule against perpetuities at common law invalidates future interests (contingent remainders and executory interests) that may vest beyond the time of perpetuities, meaning a person is prevented from putting qualifications in his will that continue to control or affect the distribution of assets long after he dies. The perpetuities period under the common law rule is not a fixed term of years. The rule limits the period to at the latest 21 years after the death of the last identifiable individual living at the time the interest was created (life in being). This measuring life could be the grantor, a life tenant, a tenant for a term of years, or a contingent remainder or executory devise to a class of unascertained individuals, the person capable of producing members of that class.

To set up a charitable remainder trust, set up a trust and transfer to it the property to donate to a charity. The charity must be approved by the IRS. The charity serves as trustee of the trust, and invests the property so it will produce income. The charity pays the settler a portion of the income for a certain number of years, or during life. When the period expires or at death, the property goes to the charity.

The tax breaks come when the settler takes an income tax deduction, spread over five years, for the value of the gift to the charity. The IRS deducts from the value of the property, the value the amount of income the settler estimates to receive from the property. When the trust property goes to the charity, it's no longer in estate so it isn't subject to federal estate tax. When appreciated property is sold for cash, the proceeds stay in the trust because charities, unlike individuals, don't have to pay capital gains tax.

Continue reading "Getting Tax Breaks for Doing Good - Walnut Creek" »

CNNMoney.com Lesson 21: Estate Planning discusses the top things to know about estate planning. Number 3 on the list says to take inventory of assets. Assets include investments, retirement savings, insurance policies, and real estate or business interests. Whom should inherit the assets? Whom should handed financial affairs if incapacitated? Whom should make medical decisions if unable to make them?

When studying estate planning, it helps to have a glossary of often used trust terms:

CONSTRUCTIVE TRUST: created by a court to grant relief when person obtains legal title to property which rightfully belongs to another. Constructive trust granted when: 1) one party receives legal title for real or personal property, and another can prove he supplied consideration before other party took title, unless both parties close relatives (parent, grandparent, spouse), title was taken for illegal purpose, or fraud or wrongdoing; 2) one obtains legal title through theft, conversion, fraud, or duress, breach of fiduciary duty, homicide; 3) title to land or to inheritance obtained by breaching a promise to hold property for another. Trustee must convey legal title to the beneficiary, must account for all profits and damages from/to property and may raise equitable defenses.

PRUDENT INVESTOR RULE: imposes standard of good faith, reasonable prudence, sound discretion and care in making trust investments: investments must be constantly reviewed and changed if necessary; overall portfolio performance disregarded; each investment must be prudent; take into account diversification of trust inventory and marketability of inventory; prudent investment measured at time of investment. Proper investments: government securities, first mortgages on land with adequate security, high grade corporate bonds, productive land. Improper investments: unsecured loans, second mortgages.

SPENDTHRIFT TRUST: trust that prevents a beneficiary from either voluntarily or involuntarily transferring interest in a trust. This trust protects a beneficiary from his own improvidence. The provisions are valid if the settlor's intent is clear: 1) prevent creditors from reaching beneficiary's interest, 2) settlor can't be beneficiary of spendthrift trust, 3) majority view of courts: restraints on equitable remainders valid; minority view of courts: allows restraints only on income interest.

SUPPORT TRUST: trustee can pay only so much of income or principal as is necessary for beneficiary's support. Beneficiary's interest can't be assigned or reached by creditors. Split in court authority whether other income available to beneficiary should be considered in deciding amount of support. Look to settlor's intent.

Continue reading "Glossary of Trust Terminology - Sacramento" »

CNNMoney.com Lesson 21: Estate Planning discusses the top things to know about estate planning. Number 1 on the list was to have a plan that ensures family and financial goals are met after death.

When studying estate planning, it helps to have a glossary of often used will terms:

ACTS OF INDEPENDENT SIGNIFICANCE: Does extrinsic fact or event have sufficient legal significance apart from will? Act must be one which ordinarily has some non-testamentary utility or function. For example, "$1000 to my employees at time of my death" - Act of choosing employees non-testamentary function since act done to enhance business, not to designate beneficiaries under will. For example, "$1000 to person who has letter from me naming him as beneficiary" - Invalid because purpose of act is to designate a beneficiary.

FRAUD: representation material fact known to be false for inducing action or inaction which does in fact induce action or inaction. 1) execution: testator does not know instrument signed is his will, then entire will void and estate passes by prior will or intestate. 2) inducement: testator knows signing will but misled by fraudulent misrepresentation as to provisions, then only part of will infected by fraud void. 3) failure to revoke: testator requested revocation, but wrongdoer fails to honor request, then will invalid. 4) prevention of will: testator told a lie to prevent him from writing will. 5) constructive trust: unjust enrichment or injustice (omission of beneficiary) would otherwise result, then court probates the document and forces wrongdoer to serve as constructive trustee for beneficiaries.

MISTAKE: 1) execution: testator mistakenly signs wrong document, then no intent to make will. Will is invalid and parol evidence inadmissible. 2) inducement: testator makes particular disposition based on mistaken beliefs, then will is valid and no relief unless both fact of mistake and disposition of property testator would've made but for mistake appear on face of instrument. 3) content: scribner's error (i.e. provision excludes/includes beneficiary) leaves no relief because to do so would subject every will to attack and destroy Statute of Wills.

POUR OVER TRUSTS: attempted testamentary gift to pre-existing trust; attempt by decedent to have assets in estate added to corpus of trust which he (or 3rd party) created during lifetime. Where inter vivos trust was in existence when testator executed will, and will does not modify trust, courts sustain trusts based on 2 theories: 1) incorporation by reference: reference in will incorporates preexisting trust into testamentary plan. 2) independent significance: act of establishing preexisting trust has legal significance apart from will. Where testator modifies preexisting trust after executing will, courts are split in decisions as to effect of modification on will: a) some courts invalidate entire testamentary gift; b) other courts uphold gift but disregard modification; c) modern trend: courts uphold gift as modified.

Continue reading "Glossary of Will Terminology - San Francisco" »

An express trust requires (1) present intent by the settlor to create a trust, (2) trust property, (3) beneficiary to enforce the trust, (4) trust purpose that is not contrary to public policy, (5) appointed trustee.

For example, a settlor can show intention to create the trust by providing in a will that one-half of his estate was to be held in a trust for ten years. The trust property is one-half of the person's estate

A testamentary trust will not fail for lack of a trustee, but failure to name a trustee may evidence lack of intent and prevent delivery of the trust property.

A trust is usually created for the care of one's family. If the trust has a charitable purpose, and a charitable purpose selected by the settlor is impractical, the court selects an alternative under the cy pres doctrine, meaning "as near as possible". The court must find a general charitable intent on the part of the settlor and ascertain the purpose. The courts consider the community at large the beneficiary of a charitable trust, and any particular individual eligible for its benefits has no standing to enforce the terms. The enforcement duty goes to the state attorney general.

The trust beneficiaries are the persons who receive property left to them when the settlor dies. Sometimes whether a beneficiary gets trust property when a settlor dies depends on whether the devise is characterized as general or specific. A general devise is one which refers only to the economic value of the property, while a specific devise describes a particular piece of property. A specific devise or bequest is adeemed if the specific property given is not part of the estate at the time of death. In California, ademption is dependent on the settlor's intent to adeem at the time he disposes of the specific property.

If you have any questions with regard to estate planning, please contact our office at 1-800-303-2964. Rinne Legal is located at 1990 North California Blvd., Walnut Creek, California 94596, with additional offices in Fairfield, Oakland, and Sacramento. Rinne Legal offers free initial consultations.

When a devisee or legatee dies after the testator executes his will but before the will becomes effective, the gift to him fails or lapses. For example, when a Beth, a testator's sister, predeceases the testator, the gift to Beth lapses, and goes to the residue.

In California Probate Code Section 21110, the antilapse statute applies if the devisee who predeceases the testator was kindred of the testator or the testator's spouse. Section 21110 provides if: "a transferee . . . fails or is treated as failing to survive the transferor . . . the issue of the deceased transferee take in the transferee's place in the manner provided in Section 240." For purposes of Section 21110, "transferee" is limited to "a person who is kindred of the transferor or kindred of a surviving, deceased, or former spouse of the transferor."

For example, Beth, the testator's sister, dies leaving a child, Norm. Since Beth was kindred to the testator, the gift would pass to Norm, Beth's issue.

An antilapse statute protects attempted devises from otherwise lapsing and the property passing instead by intestacy. Antilapse statutes prevent unintended disinheritance of one or more lines of descent, by presumptively creating an alternative gift in favor of the descendants of certain of the decedent's predeceased relatives.

If you have any questions with regard to estate planning, please contact our office at 1-800-303-2964. Rinne Legal is located at 1990 North California Blvd., Walnut Creek, California 94596, with additional offices in Fairfield, Oakland, and Sacramento. Rinne Legal offers free initial consultations.

People cannot circumvent creditors by putting property in a revocable living trust. The creditors can still get a settlor's property in a trust while the person is alive. There is the misconception by some that because the trust is a separate legal entity from the individual, the creditors cannot get at the trust assets. However, this is not supported by law. This is because the person has complete control over the property, and the trust can be revoked at any time.

Further, during the settlor's life, the living trust does not have a separate existence for income tax purposes. The IRS treats the trust property the same as if owned by the settlor. The trust cannot be used to lower taxes. Besides income taxes, living trusts do not save on estate taxes.

This is compared to property placed in an irrevocable living trust. In an irrevocable living trust, the settlor is not able to change the trust. Creditors cannot reach the property owned by a bona fide irrevocable trust. The trust cannot be set up for purposes of defrauding creditors.

If you have any questions with regard to estate planning, please contact our office at 1-800-303-2964. Rinne Legal is located at 1990 North California Blvd., Walnut Creek, California 94596, with additional offices in Fairfield, Oakland, and Sacramento. Rinne Legal offers free initial consultations.

A codicil is a testamentary instrument executed subsequent to the execution of a will, which modifies, amends or revokes a will. A codicil must meet all will formalities for a traditional or holographic will. A holographic will is one in which the material provisions are handwritten by the testator, and which is signed by the testator. A holographic will need not be witnessed.

A codicil may be revoked by physical act, accompanied simultaneously by intent to revoke the instrument. For example, the words "Null and Void" can be written across the text of the codicil in the testator's handwriting, followed by the testator's signature. The act of writing "Null and Void" across the text serves to obliterate or cancel the codicil by physical act. If obliteration occurs on all material parts of the codicil, and the testator shows intent to not give a gift by telling several people, there is a complete cancellation of the codicil.

A codicil may incorporate by reference other documents. Incorporation by reference permits the testator to incorporate any document by reference if (1) the document was in existence at the time the testamentary instrument was executed, (2) the document was clearly identified in the instrument, and (3) the testator intended to incorporate the document. For example, a codicil can incorporate a note written by the testator, in existence at the time the codicil is created, by clearly identifying the note.

If you have any questions with regard to estate planning, please contact our office at 1-800-303-2964. Rinne Legal is located at 1990 North California Blvd., Walnut Creek, California 94596, with additional offices in Fairfield, Oakland, and Sacramento. Rinne Legal offers free initial consultations.