Feb 02, 2023
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Having a valid will allows you to decide what happens to your property and your loved ones after you die. Through a will, you can appoint guardians for minor children and determine who should care for your pets once you’re gone.
A valid will also appoint the person in charge of managing your estate after you die, known as the estate executor where you will provide direction of your last wishes, and include details about funeral arrangements.
Essentially, a will communicates what you want to happen following your death.
While probate is necessary for many estates, a will streamlines the legal progress and can make matters easier, less contentious, and less costly for loved ones. Listing clear beneficiaries leaves little room for arguments between family and friends. A will can also bring peace of mind, knowing that your wishes will be carried out after you die.
Per the Superior Court of California, several types of will are legally valid in the state. In addition to traditional wills, they include:
Assuming they meet certain conditions, holographic wills are valid in California. Holographic wills are those that have been handwritten by the testator. There's no requirement that a holographic will is witnessed or notarized, but it must be signed and dated by the testator.
For a holographic will to be admitted to a court, there must be no doubt that the will was created by the testator, which can be hard to prove. The court must also be satisfied that the deceased intended for the document to serve as their last will and testament.
Any ambiguous or contradictory provisions may invalidate a holographic will, and because they’re often not witnessed they are vulnerable to contests and complications.
Statutory wills are those prepared using a template you can fill out. California's statutory will is free and is located under California Probate Code Section 6240. You must fill in the blank spaces exactly as they appear, and you can't change any of the will's wording. Two witnesses must sign the document, and witnesses cannot be named beneficiaries in the will or a spouse of a beneficiary.
Pour-over wills typically work alongside living trusts. They can help estates avoid probate, assuming that only minor assets need transferring or pouring over. A living trust is a legal arrangement that allows someone to place their assets into a trust while they’re still alive, thereby reducing the size of the estate. With a pour-over will, any remaining assets in your estate automatically transfer into your trust when you die. They are subsequently distributed to trust beneficiaries as already named in the trust document.
Pour-over wills can simplify the management of your estate for your executor and trustee, and provide additional peace of mind for trustors: If they forgot something in their lifetime, they can rest easy knowing that the pour-over will have their assets covered. They also provide more privacy than a standard will, preventing non-parties from seeing how you divided your assets. Trusts remain private, unlike wills that become public records following death.
Whatever type of will you opt for, there are some standard steps you should follow when creating your will in California. You should:
At the top of the page, include your full name and address, as well as a title that indicates that this is your will. This will help to make it clear that this is a legally binding document.
For example, you might write: "I, John Smith, of 123 Main Street, Los Angeles, California, declare this to be my last will and testament."
If you have previously created a will or codicil (an amendment to a will), include a statement revoking all prior wills and codicils. This ensures that your most current wishes are carried out.
Alternatively, if you are only making small changes to your will or codicil, you can simply list the changes rather than revoking the entire document.
This is the person who will be responsible for seeing that your debts and funeral expenses are paid, and who will carry out the provisions of your will. You can name anyone you trust to do this – a family member, friend, or professional.
You will officially name your executor later on in the will. For now, simply write something like “I hereby designate my spouse/friend/etc. to be my executor who will be responsible for settling my estate and carrying out the provisions of this will.”
Beneficiaries are individuals who you leave assets to in your will. It is important to draft a list of all of your assets before deciding who will inherit what.
This will make the process simpler and ensure that each of your beneficiaries is accurately identified. You can name your spouse or children as the sole beneficiaries of your estate if you wish to streamline the process.
You'll need to choose someone who you trust to take care of your children in the event of your death. Be sure to include their full name and other identifying information in your will. If you're leaving assets to your children, you'll also need to name a conservator to manage those assets until the children are 18.
The executor or personal administrator is responsible for distributing your assets according to your wishes. Choose someone you trust to carry out your instructions and who is willing to take on this important role.
The court may also appoint a professional fiduciary, such as a bank or trust company, to serve as executor if none of the people named in the will are willing or able to serve.
This is a crucial step in making your will legally binding. No matter what type of will you have written, your signature and the date must be included for it to be valid. Remember to have witnesses present when you sign your will, as they will also need to sign it in order for it to be considered legal.
These individuals must be present when you sign your will and must sign and date the will themselves to confirm their presence. To ensure your will is valid, choose witnesses that are not beneficiaries in your will. Under California law, they also need to be at least 18 years old.
If you want to amend your will in California, you will need to create another legal document, known as a codicil. Using a codicil means that you don't need to revoke your existing will and draft an entirely new legal will.
You can create a codicil at any time and, through codicils, can amend your will as many times as you wish during your lifetime. Codicils do not need to be notarized. The same requirements regarding the validity of a traditional will apply when enacting codicils: Codicils should be dated, signed and witnessed.
In California, there is no legal requirement to have your will notarized. If you are concerned about creating a will and want to ensure that you’re covering all of your bases, there’s no need to get expensive lawyers involved.
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