What is a Will?
So what is a Will? I think most of us have a pretty good idea of what a Will is all about. A Will is an instrument that distributes property upon the death of the Testator. The Testator is the person that created the will. It is said that the will speaks only upon the death of the Testator which means it can be modified or completely revoked. There are certain exceptions relating to powers of appointment but for the purposes of our discussion here I will not go into any detail regarding that. Wills are admitted to probate which, among other things, means that it’s a public document. This is the main reason why actors, other famous people, ultra-rich, and – almost all of us – prefer not to use them to dispose of an entire estate. A trust is a private document and has gained much favor because of that aspect alone.
Limitation to who can create a Will
There are certain limitations to who can create a will. For example the Testator must be 18 years of age and of sound mind according to the California Probate Code. Moreover, there are certain conditions that must be satisfied in the creation and signing of the will. Some of these conditions include the need for witnesses to also sign the Will and understand that the document is in fact the Testator’s Will. Another potential pitfall is where one or both of the witnesses are to receive something in the Will they are witnessing. Moreover, the witnesses must be competent at the time that the will is executed under the California Probate Code. As you can see, although they are not terribly difficult concepts, there are quite a few and there are more than I’ve mentioned here.
Besides the formally created Will the California Probate Code also recognizes a holographic Will. A holographic Will by its simplest definition is one that is handwritten and is unattested (no witnesses required). The California Probate Code requires that for creating a holographic Will, the will is to be handwritten and signed by the Testator. The California Probate Code does not require the holographic Will to be witnessed. There are, of course, other requirements for creating this type of Will for it to be valid such as capacity of the Testator, and proper testamentary intent. Again, it is advisable to obtain guidance if this is an avenue you wish to pursue.
California provides for the creation of a statutory Will which is usually characterized by some preprinted form where the Testator fills in the blanks. This too has certain conditions that must be satisfied, and if you’re considering using this method it would be advisable to be sure you know what the conditions are.
Further, no matter which method is chosen care must be taken regarding certain actions you may wish to take with the Will. For example crossing out a gift to a person in order to increase the gift to that person can cause great problems and unintended results. Care must also be taken in revoking part or all of the Will and / or revoking a gift to a particular beneficiary.
You can learn more about Wills, Trusts and even read a comparison of a Will to a Revocable Living Trust on my blog. Please feel free to call me today and we can discuss your Estate Planning goals soultions.