What is a Last Will and Testament?
A Last Will and Testament is a legal document that directs the distribution of your estate according to your wishes. If you die without a will, the state has certain rules that have been established to give this direction, however, the rules may contradict your wishes and your estate may be dispersed in a manner that is inconsistent with your wishes. Dying without a will is referred to as “intestacy” or “dying intestate”. The intestate rules of California are located within the California Probate Code, found here.
The word “will” is used in a variety of contexts, but there is really only one type of will that you should familiarize yourself with and prepare.
- A “Living Will” is not actually a will, but is a document that describes your health care wishes in the event that you become incapacitated and are unable to make those decisions on behalf of yourself. In California, this is called an Advance Health Care Directive, and the state has a prepared short form that can be quickly put together here. If you require more specific wishes, please consider discussing these with an attorney, and they can help you decide if the short form is adequate or if you’ll require something more specific prepared.
- A “Holographic Will” is a document that has been handwritten by the author and signed by them. This type of will does not require witnesses, however, wills written in this format are easily challenged and rarely hold up in court.
- An “Oral Will” is a will that is spoken in the presence of witnesses. California does not recognize oral wills. There are only a handful of states that recognize wills of this type and usually under an exception.
- A “Video Will” is a video-taped / recorded will. Wills that are prepared in this fashion are also not recognized in California.
- An “Attested Will” also known as a “Testamentary Will” or “Self-Proving Will“. Wills prepared in this fashion are usually typed, signed by the testator (the individual whose estate the will concerns) and also signed by two disinterested witnesses, who witnessed the testator sign the will. A disinterested witness is an individual who is not named as a beneficiary of the will. Wills prepared in this manner are considered the most reliable and will survive the most scrutiny. Under the California Probate Code, all wills must be in writing and conform to these standards (aka “California Statutory Will“).
Should any of the above wills be challenged and the court finds that the will is invalid, the court will use the rules set forth in the Probate Code.
Why do you need a Last Will and Testament?
Imagine that you have been involved in the Boy Scouts or the Girl Scouts your entire life. You started when you were young, acted as a leader in the Scouts, volunteered you time, resources and money to support the Scouts, etc., and it is no surprise to anyone that you wish to leave a portion of your estate to the Scouts. If you were to pass away without a will or with a will that does not satisfy the statutory requirements as mentioned above (see Testamentary Will above), the court will use the ‘default rules’ of the Probate Code, and none of your estate will be allocated to the Scouts, despite the significant contribution of your life with that organization.
Please understand that my use of Scouts is only as an example to illustrate a common scenario and is not an endorsement or suggestion as to how anyone should allocate their estate.
A will directs the court (also referred to as “Probate”) as to how to how to proceed with distributing your estate. It doesn’t matter how large or small your estate is, most people have something that they wish to insure is given to someone after they die; like a family ring, necklace or other heirloom that they would like to have set aside for someone they care about. Perhaps, it is the opposite, where there is someone that they specifically DON’T want their estate to be left to. For example, if a father and a son have had a falling out, and the father no longer wishes to leave a portion of his estate to his son. Under the rules of intestacy, the estate may be given entirely or partially to a natural son. A will may also be used to direct how minor children are to be cared for after your death.
How do you get a Last Will and Testament?
The first step in preparing a will is to make a list of all of your assets and all of your debts. This list should include any personal valuables, family heirlooms, safety deposit boxes, essentially, anything that you would like to pass to someone after your death. There are certain considerations that you should make if you have a valuable estate, and these considerations would be best answered if you advise an attorney that is familiar with your state’s rules.
Once you have the list, you can make use of legal software, online services such as Rocket Lawyer or Legal Zoom, or speak with an attorney. Depending on your needs, an attorney will be able to answer specific questions about your estate and also assist with an ongoing changes in your estate, and being an attorney, I would suggest speaking with one. However, it is sometimes difficult to pay for an attorney to prepare a Last Will and Testament, so other options exist to help with that situation. The bottom line is GET COVERED!