What is a Will?

A Last Will and Testament (generally called a “will”) is a legal document which states your wishes for distribution of your property and care for your minor children (if any) upon your death, and nominates an executor who will carry out those wishes.

 The California Probate Code contains the laws which apply to forming wills and executing wills. Generally, anyone (‘testator’) who is 18 years of age or older and of sound mind can make a will. What we mean by ‘sound of mind’ is that the testator is aware at the time that s/he is forming a will.  More specifically, s/he must be aware that s/he is creating a will, the nature of his/her property, and to whom s/he is leaving the property.

There are rules of formality that California requires for a valid will. Generally, a will must be signed by the testator and at least two disinterested persons (i.e. your witness should not be your beneficiary!) each of whom (a) witnessed either the signing of the will or the testator’s acknowledgement of the signature of the will and (b) understands that the instrument they sign is the testator’s will. Another option is creating a ‘holographic will’ which requires material provision be in the testator’s own handwriting and that the document be dated and signed; a ‘holographic will’ does not need to be witnessed.

Your will can be as simple as leaving all your possessions, both personal and real property, equally to your beneficiaries, outright, or it may be more complex requiring the executor to hold inherited assets in a testamentary trust for the benefit of young beneficiaries or perhaps creating a special needs trust for a beneficiary who would otherwise become ineligible for public benefits.

If you have minor children, then including guardian provisions in your will is vital to protect your children. This is where you will nominate someone you trust to care for your child and your child’s estate in the event both parents pass away. In California, you will nominate a “Guardian of the Person” to care for the child (i.e. child’s personal care, living arrangements, etc.) and a “Guardian of the Estate” to care for the child’s financial assets. The same person can act as both. The Probate Court has the responsibility of appointing a guardian for a minor child, and the parents’ proposed guardians are generally deemed to be best choice.

Upon the testator’s death, the nominated executor (i.e. personal representative) will file the original will with the Superior Court of California in the testator’s local county. It is important to note that drafting a will does NOT avoid probate. This means that your information (i.e. assets, beneficiaries, etc.) will become public, the court will have oversight of the administration of your will, and your estate will be responsible for the fees and costs of the probate process.

The appeal of saving money and using online forms to prepare estate planning documents may not be in the best interest of your family down the road. If a portion or all of your will is found to be invalid, then your family will spend thousands of dollars working with an estate planning attorney after the fact. If you are thinking of creating a comprehensive estate plan, then it may be in your best interest to seek out the advice of a qualified planning attorney.

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