A will is a written document that disposes of a person’s property at his death. It tells the world who get what when you die.

Will formalities are simply:

          • Writing
          • Signature
          • Two witnesses (Prob C § 6110)

QUESTIONS REGARDING WILLS

Q. What happens if I die without a Will?
A. A court will determine who gets your estate. A court will choose your children’s guardian.

Q. Why should I have a will?
A. Control. You choose to whom to leave your property. You select the executor. You nominate your children’s guardian.

Q. What’s the difference between a Will & Living Trust?
A:

          • A trust avoids probate; a will does not.
          • A trust avoids a court conservatorship proceeding. If you become incapacitated,
the successor trustee will manage trust property for your benefit.
          • A trust is private.
          • A trust saves time and money during administration.
          • A will designates an executor. A trust by contrast, names a trustee. These are distinct roles.

Q. Does a will avoid probate?
A. No.

Q. Is a Will a public document?
A. During life, no. Yes, after the testator’s death. When a will is probated, it becomes a public record.

Q. Do I need a lawyer to prepare my will?
A. Not necessarily. You may satisfactorily prepare your will, especially if you have a very simple distribution. However, all too often I have seen defective homemade wills. These problematic instruments end up causing the testator and his family far more grief and expense than would have been the case if the testator had a lawyer prepare or review the will. 

Q. What is a pourover will?
A. A will that is created to complement a living trust. Under a pourover will, when the testator dies, his assets “pour over” to the trust.

Q. What is a holographic will?
A. In California, a will that is (1) signed by the testator and (2) whose material provisions are in the handwriting of the testator.

          Probate Code section 6111.

          (a) A will that does not comply with Section 6110 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.

          (b) If a holographic will does not contain a statement as to the date of its execution and:

          (1) If the omission results in doubt as to whether its provisions or the inconsistent provisions of another will are controlling, the holographic will is invalid to the extent of the inconsistency unless the time of its execution is established to be after the date of execution of the other will.

          (2) If it is established that the testator lacked testamentary capacity at any time during which the will might have been executed, the will is invalid unless it is established that it was executed at a time when the testator had testamentary capacity.

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