Estate Planning: Wills
A will, also known as a testament, is a legal document created by you that names the person who will manage your estate and explains how your property will be transferred upon your death. A will also nominates guardians for minor children. Depending upon the complexity of a client's estate, and upon the client's wishes for distribution of assets, some clients need only a will. Others will have a "pour-over will" in conjunction with a revocable trust.
A will, also known as a testament, is a legal document created by you that names the person who will manage your estate and explains how your property will be transferred upon your death. If you have minor children, a will also names a guardian for those children.
Why Create a Will?
Discussing and drafting wills can be difficult, because it forces you to consider your own death. However, not creating a will can place great burdens and stress on your loved ones and make a difficult situation even more challenging.
If you die without a will, you’ll be said to have died intestate and your property will be distributed under California's laws of intestacy.
If a will isn’t prepared according to required formalities it may be found defective in a court of law. Because there are important legal considerations in drafting wills, working with an experienced attorney can help ensure that your wishes are accurately captured and carried out. If you’d like legal guidance, the attorneys at Vaught & Boutris LLP provide a full range of estate planning services.
A will, also known as a testament, is a legal document created by you that names the person who will manage your estate and explains how your property will be transferred upon your death. If you have minor children, a will also nominates a guardian for those children. A person who makes a will is called the testator.
A will may be amended or supplemented after it is executed. This amendment is known as a codicil. In order to be valid, wills and codicils must be validly executed, meaning they must follow specific rules which vary from state to state.
If you’re a resident of California, you’ll need to abide by certain laws when preparing a will. The requirements include the following:
- You are at least 18 years old.
- You are of sound mind.
- The will must be signed by you; by another peroson, in your presence and at your direction; or by a conservator pursuant to a court order.
- The will must be signed by at least two witnesses, who fulfill certain legal requirements.
If these requirements are not met, your will may be found invalid and your property may pass by the laws of intestacy.
Types of Wills
California recognizes three types of wills:
- Wills prepared by a third party (usually an attorney);
- Statutory wills;
- Holographic or handwritten wills.
Holographic or Handwritten Will
In California, if you write a will in your own hand, it is considered a holographic will. The signature and the material provisions must be in the handwriting of the testator. Litigation surrounding holographic wills is not uncommon, so many individuals elect to have a will prepared by an attorney who is trained in the requirements for drafting a valid will.
A statutory will is also known as a fill-in-the-blank will and is typically used by people who have small estates. It is quite limited in its scope, as the choices that are provided for how property is distributed cannot be tailored to fit all situations. Statutory wills are described in Probate Code sections 6200 et seq.
A Will Prepared by a Third Party
These types of wills are also referred to as lawyer-prepared wills because they are almost always prepared by lawyers. This can be helpful, because an attorney can advise you on the most economical and effective ways to distribute your assets to loved ones, including minimizing tax implications. Experienced attorneys are also familiar with the requirements for valid execution of a wll, as well as strategies for avoiding common pitfalls in the drafting and execution of wills.
If you have questions about preparing a will or need assistance in doing so, the attorneys at Vaught & Boutris would be happy to speak with you.
Contesting a Will
If someone contests a will, that person challenges the content of a will in a court of law. A will can be invalidated on a number of grounds that include the following:
- Fraud is involved, such as a person writing a will under the name of somebody else.
- The decedent was under duress, meaning they were threatened or forced to write or change the contents of their will.
- The decedent was acting under undue influence from another person.
- There are mistakes resulting from honest error.
- The writer had insufficient mental capacity at the time the will was written.
What Happens if a Will Contest is Successful?
The result of a successful contest depends on the reason for the will dispute. If the will was found to be invalid because it did not conform to California law, or if the testator was not mentally competent when it was made, then the property will pass according to the laws of intestacy as if the will never existed.
If you have questions about a will contest, or if you would like to contest a will, the expert attorneys at Vaught & Boutris will be happy to speak with you.
Revoking a Will
A testator may change or cancel a will at any time before he or she dies, as long as the testator has capacity. However, there must be concurrence between the testator’s intent to revoke the will and an act that revokes it. In other words, if you intend to revoke the will but don’t act on that intention, your will is not revoked. Conversely, if someone acts to revoke your will without your knowledge or direction, your will is not revoked.
Revoking a Will by Another Writing
One way to revoke a will is by a clause in another writing made and signed with the same formalities required for a will. Indeed, a will often contains a clause revoking all prior wills. A will can also be partially revoked by a will amendment known as a codicil.
Revoking a Will by Physical Act
Another way to revoke a will is by a physical act done with a current intent to revoke the will. The common physical acts are burning, tearing, or otherwise destroying the document, or obliterating the document's text.
It is important to remember that a will cannot be revoked accidentally. If a will is merely misplaced, lost, or stolen, it is not revoked. If the contents of the will can be reliably recreated from other sources, the will controls the disposition of the testator's estate.
In California, if a will cannot be found and it was last in the possession of the testator, and the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator's death, then it is presumed that the testator destroyed the will with the intent to revoke it.
Revoking a Will by Operation of Law
A will can be revoked, or partially revoked, by operation of law.
A provision in a new will or codicil that contradicts a provision in an old will or codicil revokes the provision in the old will or codicil. Also, in California, unless the will expressly provides otherwise, a final decree of dissolution of marriage or annulment (or a termination of a domestic partnership) automatically revokes gifts in the testator's will to the testator's spouse or domestic partner, and automatically revokes any provision of the will nominating the former spouse or domestic partner as executor.
Executors: Settling Assets
As a personal representative (administrator or executor of an estate) who has been appointed by the court, the first step in settling the decedent's estate is to locate and safeguard all of the decedent's assets. You must then figure out which assets belonged solely to the decedent so that you can protect them until they can be distributed either according to the decedent's will or, if the decedent had no will, under California intestacy laws. Finding such assets can be a challenge.
One place to begin your search is the decedent's bank accounts. Checking accounts can provide invaluable information through bank statements. By reviewing the decedent's transactions for the year preceding death, you are likely to find information on insurance policies, loans, taxes, healthcare expenses, mortgages, and investments.
Another good place for information about assets is the decedent's mail. When the local post office learns of the death, a decedent's mail will be held for 15 days and then returned to the sender. If a family member provides the local post office with proper identification and a copy of the death certificate, he or she will be able to claim the decedent's mail or have the mail readdressed to him or her by filling out a change of address form. You may do the same thing once you have been officially appointed and you have been issued "Letters" by the court.
Be aware that you will not have access to most government checks or to documents intended for the exclusive use of the decedent, and such documents must be returned to the sender.
Keep in mind that any mail addressed to joint owners should be given to the surviving owner because it is not part of the decedent's estate. You may then wish to sort the mail into assets, liabilities, personal letters, and junk mail. You should monitor the decedent's mail for at least one year because many assets have semiannual and annual terms.
Safe Deposit Boxes
A last place to look for actual assets or for documentary evidence of assets is a safe deposit box. Your review of the decedent's bank accounts may show a safe deposit box rental payment. If not, you can ask at any bank where the decedent did business as to whether he rented a safe deposit box.
Wills and Probate Attorneys
Although it may be an uncomfortable topic, executing a will is one of the most important actions you can take during your lifetime. By thoughtfully assessing your estate while you are still alive, you have the peace of mind knowing that when you pass away, the people and things that you care about will be protected.
Why Consult a Wills and Probate Attorney?
Obtaining legal advice and representation regarding your will can be beneficial in many situations, including the following:
- Your estate consists of considerable assets and requires tax planning to mitigate the effects of estate tax.
- Your plans are more complex than just naming people to inherit property.
- A beneficiary requires long-term care.
- The will is being contested, or you have concerns about somebody contesting the will.
Probate can also be a difficult situation to navigate, particularly if someone died intestate (without a will), no executor is named, or a will is contested. You may also need help understanding probate laws and procedures. Other complicated situations may include:
- There are complex tax situations regarding distribution of assets.
- There is excessive debt on the estate.
- There is uncertain or unclear wording in a will.
- Property has been left to a minor.
You may also elect to establish a living trust, thereby avoiding probate altogether. In all these cases, working with an experienced wills and probate attorney can be very helpful.
Vaught & Boutris can handle your wills and probate work with expertise, tact, and sensitivity. If you’d like to learn more, our attorneys would be happy to speak with you.