A Will is a written instrument that someone can use for distributing their personal or real property to others at the time of their death. A Will usually devises (gives or disposes) property, names a manager of the estate (executor), it may also make provision for guardianship of minors, and contain other provisions. A “codicil” is basically an amendment to a Will.
There are four types of Wills that can be validly executed in California: (1) a witnessed Will; (2) a holographic Will; (3) the California statutory Will; and (4) a Will executed under the Uniform International Will Act. A witnessed Will is also referred to as a formal Will or an attested Will. A witnessed Will must be in writing, signed by or on behalf of the testator, and signed by at least two subscribing witnesses who attest that the required formalities have been observed.
A witnessed Will, generally the most used, must be in writing and must be signed by one of the following: (1) the testator; (2) in the testator’s name by someone else in the testator’s presence and at the testator’s direction; or (3) by a conservator pursuant to a court order to make a Will. The Will must be witnessed by being signed by at least two persons each of whom (1) being present at the same time witnessed either the signing of the Will or the testator’s acknowledgement of the signature or of the Will, and (2) understand that the instrument they sign is the testator’s Will. A statement as to the date of execution is a normal feature of a witnessed Will; however, a date has never been a legal requirement for a witnessed Will.
A holographic Will need not be witnessed; however, the signature and material provisions of the instrument must be in the handwriting of the testator. California has also enacted a statutory Will, which must be signed by the testator and attested by witnesses. However, under certain circumstances, the court may dispense with some of the formalities. Finally, California has enacted the Uniform International Will Act (“UIWA”). Wills executed pursuant to the UIWA are intended to be valid in any jurisdiction which recognize the UIWA. An international will must be signed by the testator, by two subscribing witnesses, and also by an authorized person.
Wills have generally become less used over time due to the increasing popularity of instruments that help avoid probate, which Will are subject to. Probate costs money, takes time, and is open to the public. A testamentary trust (discussed in an upcoming post), for example, transfers property outside probate, and is private. Even though less popular now, virtually every estate plan needs a Will.
For example, a will with family “pot trust” (everything goes into a pot for benefit of kids) may be all that is required for a young couple with children, where life insurance is the principal asset. A will may be the only effective way to dispose of an estate for a person going through a marriage dissolution, at a time when the division of property has not yet been concluded and other estate planning tools are simply unworkable. For wealthy clients with sophisticated estate plans, a Will can function as a safety net; as in the case of a pour-over Will integrated with a trust. For the average couple, who wish to hold their home and other assets in joint tenancy, a Will can serve as the ultimate estate planning tool to affect their wishes should they die in a common event. Even if a client’s testamentary plan simply mirrors California’s intestate succession laws, a Will can clarify intent, add flexibility, and offer savings missing with intestate succession. Whatever the circumstances, a Will is almost always justified.
I will talking about some of the basics of testamentary trusts in an upcoming post. Thanks for reading!Tweet