Your Last Will & Testament in California
We all know what a will is, right? Well, kind of. While most have a general idea of what a last will and testament is, the details about how to accurately draft a will, or the importance of doing so, are little known facts. As an Estate Planning attorney in The SF East Bay, I commonly draft wills and work with clients to resolve issues relating to improperly done wills. As such, I have found that most of us could use a brief refresher on what exactly the purpose and necessity of a will is.
Now, historically, a will has been called one's "Last Will and Testament". The "will" part technically refers to real property (land, housing, buildings, or "fixed" property), whereas the "testament" refers to "personal property" - or smaller items such as cars, jewelry, etc. However, the terms "will" and "testament" have also been used interchangeably, and the legal community generally uses the term "will" to refer to both types of property- real and personal. So, for example, I could own a house in Walnut Creek, an office building in Concord, a boat in Benicia, and several valuable jewels. All of these items would be included in my will. Whether or not I include the word "testament" in my estate planning documents has no legal ramifications. Now, while I do not own an office building or a boat, and neither do the majority of residents in the East Bay, nearly all of us do have something we would like our children, grandchildren, and other loved friends and family to have when we die. And this is the literal purpose of a will.
I would also like to propose a secondary purpose and even duty of a will: the person bestowing assets and gifts should make it as legally simple as possible for those gifts to be passed to their heirs. When there is any ambiguity around the intention of the testator (person who the will belongs to), litigation (the legal jargon for fighting) can occur. I have seen it with even the most peaceful families. Death and money have a terrible way of unleashing emotions and stirring the pot among family members. So, let's get down to brass tax. How do you make a legal will in California, and when should you enlist the help of an Estate Planning lawyer?
Under California law, any person over the age of 18 and with "testamentary capacity" (of sound mind - i.e. no dementia or other form of mental incapacity) can draft their own will. The will can be typed, handwritten, or even fill in the blank (see below). A basic will is fairly simple to execute, however it is estimated that only 30-50% of Americans write wills before they die. California Probate Code (CA law for estates) makes only a few requirements for a valid will. A valid will is one that will be upheld by the California Probate Court. If you do not put your assets in a trust, they are required to go through the court system if the assets total more than $150,000. Anyone who owns a home in Walnut Creek, Lafayette, San Ramon, or the surrounding East Bay Area is generally well above this level.
Requirements of a Valid Will in California:
(from CA probate code 6110)
2. The will must be signed by the testator (person who the will belongs to) OR in his or her name by another under the testator's direction and also in the testator's presence, OR by a conservator with a court order.
3. The signing of the will (or the acknowledgement of the signing by the testator) must be witnessed and signed by at least two people at the same time. These two people must also understand that they are signing the will of the testator.
Note: A will may still be valid if these three things are not done, but this becomes more complicated and requires "clear and convincing evidence" to be presented before the court.
(from CA Probate code 6111)
4. A will that does not meet the requirements of code 6110 is still valid as a "holographic will" (handwritten will), whether or not it was witnessed, if the material designations (part of the will that bequeaths assets) and the signature are in the handwriting of the person executing the will.
5. If the handwritten will does not state when it was executed, AND if the fact that the date was left off results in doubt about whether or not the "provisions" made by that will or another will are "controlling" (ie legally valid) - then the handwritten will will be invalid unless it can be legally established that the handwritten will was executed after the date of the other will. This typically happens when there is an undated, handwritten will that is inconsistent with another will.
So, for example, Ms. Clark signs a will leaving her millions to family members on February 2nd, 2010. She writes another will by hand leaving her millions to art galleries and caregivers, but leaves off the date. Let's assume the caregivers and the galleries retain an Estate Planning or Elder Law attorney. If that attorney cannot establish that the second will was indeed written after the will that gave all her money to relatives, then technically the will would not be valid. Now, as was the case in real life, Huguette Clark did write two wills within a short period of time, and while they both contained valid dates - the parties fought it out in court and eventually divided up the money between relatives, galleries, and caregivers. The reasons for this had to do with questions regarding her mental capacity (number 6, stated below). Read more about the millions of Huguette Clark.
6. If the handwritten will does not contain a statement regarding the date it was executed, AND it can be established that the person executing the will (the testator) did not have "testamentary capacity" (as in dementia or other mental incapacity) during the time period when it was likely the will was executed, that will is invalid.
(CA Probate code 6113) A will is validly executed if it is compliance with 7, 8, and 9:
7. The execution of the will complies with Probate code 6110 or code 6111 or Chapter 6 of the California Probate code OR Chapter 11 (for International Wills)
8. The will is executed in compliance with the laws of the time and place it is executed.
9. The will is executed in compliance with the laws of the time and place it is executed or the will is in compliance with the laws of the place where the testator dies, has a home, or is a legal national, at the time of their death.
So, now you know the legal ins and outs of drawing up a valid will in California. While an attorney is not required to draw up one's will, having the assistance of an experienced Estate lawyer can avoid the many pitfalls of a home-made will. Because the person who drew up the will is, by nature of a will, not available to explain what they meant, or correct any small errors - there is not much room for mistake.
In general, the benefits of using an attorney in Contra Costa County outweigh the costs. Estate Planning Lawyers in Walnut Creek generally charge around $500 for a single will. When you consider the value of the assets at stake, this is relatively inexpensive.
Probate: The Process of Declaring a Will Valid in California when there is No Trust
Once the testator (writer of the will) has passed, a probate proceeding begins to determine the validity of the will or wills created. At this point, an executor will also be appointed. If the will is determined to be invalid, the court follows the "laws of intestacy" to distribute the assets. This is the same process used if a will had never been created. The Laws of Intestacy dictate the order of inheritance within a family.
The will must also be an original copy. The only way a copy of a will can be declared valid is if the will has been destroyed by accident, and this can be proven. Otherwise, the probate court accepts only originals.
Building a Relationship with your Estate Planning Lawyer
Aside from the complexities found in drafting a valid will, I also recommend retaining an Estate lawyer who will be there to answer questions for you in the future. Establishing a relationship with an attorney will give you a resource for your future estate planning questions. It is inevitable that life will change, and there may be questions that arise in regards to your estate plan, or things that need to be amended. It's always good to have an attorney in your back pocket who you can call up when need be. So, my recommendation is- find an established Estate Planning attorney in your county who is likely to continue practicing during your lifetime. In our Walnut Creek Estate Planning Practice, I specifically draft wills and estate planning documents for clients in Contra Costa County and Alameda County, as these are the court systems I am most familiar with.
If you have any questions regarding the process of drafting a living will, call my office at 925-322-1763 to set up a free consultation.
I draft wills, powers of attorney, advance healthcare directives, and trusts for residents of Walnut Creek, San Ramon, Concord, Martinez, Oakland, Berkeley, Lafayette, Moraga, Orinda, Pleasant Hill, Danville, Alamo, and surrounding areas of the SF East Bay.