What is a Will, and what is it not?
A will is a useful tool and something that anyone (over the age of 18) can have or create, however it is not the end-all be-all solution for estate planning in most cases. I am going to give a brief overview of what a will is, and what it is not.
What IS a will?
A will is a legal document that assigns your property after death.
How do you create a will?
In California you may create a will three ways:
1. Use the statutory form created by the California Judicial Council.
2. Create a will by using an attorney or software of some kind.
3. Hand write your own will, which is known as a holographic will.
What does California require?
California lays out its requirements in the California Probate Code Sections 6100-6390.
Requirements are as follows:
· Must be at least 18 years of age
· Must have mental competence to make a will
· Must be in writing
· Must be signed by the person creating the will (testator)
· Must be correctly witnessed and signed by two people; a notary is not required. The witnesses must be at least 18 and of sound mind, and they must be disinterested, meaning they do not inherit per the terms of your will.
· May only assign property that belongs to you as “separate property”, your half of “community property” or “quasi-community property”
A holographic will must meet the following requirements:
· Must be in the creator’s handwriting or hand written on the statutory form
· Must be dated
· Must be signed
A holographic will is not recommended. As it is not witnessed, there are too many questions as to whether it was created by someone who was under duress or whether they meant to say exactly what they wrote (normal words have legal meanings that do not always follow common sense) or whether they were of sound mind.
A statutory will is also not recommended. It is by no means comprehensive and some of the same concerns from a holographic will apply as well. In addition, any changes made, like a crossed out word, etc. will not count!
Additional facts about wills:
A will does not avoid probate. When someone passes with a will, their will has to be submitted to the court for approval and scrutiny.
A will is public once it is sent to probate. That means any personal information included in your will is public. Your creditors and any person intending on contesting your will then gain access to it. There is a problem when you put too much or not enough information in a will.
It costs money to submit your will to the court through probate and the fees are set by statute. It can also take a lot of time. To read more about why you want to avoid probate, click here.
What can’t a will do?
Simply put, a will alone is not enough. Here are some things a will cannot do:
A will does not take into account what happens to your property or where your children will go if you become incapacitated but do not pass away. It cannot provide your medical wishes, your guardian or power of attorney wishes during your lifetime, and cannot provide anyone with the power to step into your shoes.
A will does not protect your loved ones by creating conditional gifts. For example, if you have a child with a drug addiction or you would like to set aside money for a certain purpose such as for a down payment on a home or tuition, you cannot do this with a will.
A will does not protect those with special needs.
If you put your funeral requests in a will, it does not have to be followed.
A will does not protect or avoid any estate or gift taxes.
A will does not provide for all of your assets. For example, your life insurance, retirement accounts and bank accounts are not disposable by will. Even if you say that you want everything equally split between your children, it will not reach to those kind of items.
If you only use a will to select guardians for your children, you cannot choose how they will be raised or ensure funds you left to them will be spent on what you intend.
What to do next?
A will is necessary, but needs to be part of a comprehensive estate plan or else it falls woefully short. You can forget to protect assets that are not protected by wills, it can fail for various reasons, it will still go through probate, and it cannot provide for what happens if you become incapacitated.
To discuss your will or estate plan, or to create one, contact me for a FREE 30 MINUTE CONSULTATION.