Estate Planning: Why Is There Such an Aversion to It?

If TV ratings are any indication, estate planning is not a popular entertainment topic.

In The Will, a CBS reality show from the producers of "The Bachelor,"a wealthy land developer oversees a competition among several of his would-be heirs to give away a portion of his estate. A series of challenges eliminates the heirs until the last person left collects the inheritance. Despite this intriguing premise, the show was shelved after only one episode. While its quick demise marks a new speed record in TV show cancellation, perhaps it is viewers' distaste for estate planning-- not production values-- that caused the show's quick cancellation.

A general aversion to estate planning issues is common. Many Americans die intestate, or without a will. Some speculate that the widespread dislike for activities that acknowledge human mortality accounts for the poor planning on the part of so many. However, others suggest that many of us don't create wills, or create ineffective wills, because we simply don't understand the process as well as we should.

The assets and articles of personal property belonging to people who die intestate are generally distributed according to the law of the state in which the person resided. That means that, if you don't write a will, the state will dictate who may take your property.

Anyone wishing to avoid the presence of state law in the disposition of his or her estate must have a written will that meets the formalities of the Wills Act, as applicable in the relevant state. Those formalities must be complied with in order for a probate court to acknowledge the will as the governing voice for disposition of the deceased's property.

Some states, California included, require that the Wills Act formalities be followed exactly as the Act proscribes. Some other states allow slightly more flexibility, requiring what they call "substantial compliance" with the formalities. The substantial compliance rule is really intended to allow a court to give effect to the will of a person who tried to comply with the Wills Act rules, but accidentally made some small mistake or other. Since every state requires either perfect adherence to the rules or near-perfect compliance with the rules, it is in everyone's best interest to follow them as exactly as possible.

The will must be in writing, signed by the party whose assets are being gifted, and demonstrate that party's intent to use the document as a will. Some states require that the party's signature be at the very end of the document. Regardless of the state's position on signature placement, the signature of the gifting party must be last in time, that is to say the signature must be placed on the will after all the gifting language has been written.

Additionally, the will must be signed by two parties who witnessed the signature and who have no personal stake in the estate being distributed by the will. All signatures should have accompanying dates and witnesses should sign the will within a reasonable period of time. An errant witness signature could invalidate the entire will in a strict state like California, so it is important to be careful on this point.

Of course, a great deal of though should always go into the overall decision-making process as well - the gifts in a will should be given only after substantial thought and thorough analysis. A will can always be amended, but each amendment must be conducted with care and must also follow the formalities, making the process of will amending somewhat tedious and costly.

Based on the aggressive bickering and fierce hostility between his family members on the single episode of "The Will," perhaps Bill Long, CBS' reality millionaire, will have to think more than twice about how he wants to leave his estate when he finally sits down to write a serious will. For his sake and the sake of his heirs, we can only hope that his last will and testament is received a little bit better than this quickly-cancelled reality show.