A will is the most commonly used method of documenting a person’s wishes for the distribution of money and property upon death. The basic requirements for a valid will are that it be in writing, signed and dated by the “testator” (the person who creates the will), and witnessed by at least two “disinterested” adults. There are many other intricacies of California law that should be taken into close consideration when you are establishing a will.
If your estate is valued at less than $100,000 in combined assets, you may only need a “simple” will to distribute your assets. However, if your estate is valued at more than $100,000 in combined assets, or if you have many beneficiaries and complex assets, it is in your best interest to speak with an experienced estate planning attorney. Before you start to plan your will, you should discuss the various types of wills with your attorney to determine which type of will best suits your needs.
Different Types of Wills Include:
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Simple Wills – Simple wills are effective for estates under $100,000 in combined assets because probate will not be required, and the executor can distribute the property privately, without court involvement.
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Pour-Over Wills – A “pour-over” will works in conjunction with a trust. The “pour-over” will is a safety net in the event that an asset in your estate has to be probated because it “pours” the asset back into your trust at the end of the probate. So, if you forget to put an asset into your living trust, or if the asset is worth more than $100,000, it will have to be probated. However, your executor will be directed to distribute the money or property according to the terms of your trust, not in accordance with the intestacy laws of California.
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Holographic Wills – A holographic will is created in the testator’s own handwriting. Although holographic wills are recognized in California, they create many problems in probate and often end up disputed by the beneficiaries, especially if the decedent made other wills prior to or after the holographic will was created. Before a holographic will can be probated, the handwriting must first be proven to be that of the testator. The executor must provide a sample of the testator’s handwriting or produce a witness who can swear that they saw the decedent write the will. Also, many people combine a partially typewritten will with handwritten notes. Then the court must determine which is the operative document and if it was properly executed. These are just some of the reasons why holographic wills often fail in probate.
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