What is the Purpose of
a Will in California?
A Last Will and Testament is a document you create to instruct how you want your property distributed upon your death. Who gets the house? Who gets which antiques? Who gets a bank account? Who takes care of the pets? These are just some of the questions upon which a will answers and instructs, and just some of the information we will obtain to draft a solid Last Will and Testament that can stand up in probate and prevent challenges to its validity.
Our estate planning attorney in California will review your assets and discuss with you what you want with regard to your estate. Making sure your goals for today and tomorrow are met is our goal at Greensides Law, P.C.. Contact us online or at (408) 660-8050 to learn more about Wills specifically and estate planning.
The person creating a Will is known as a testator. The testator devises property and assets to named beneficiaries in a Will. This gives testators far more control over assets – both while they are alive and after they pass away.
As such, the Will serves four general but important purposes:
- They allow property owners to control what happens to their belongings after they die.
- They allow people to control what happens to their property after death.
- They protect the heirs, including minor children by appointing a guardian.
- They allow you to appoint who you want to oversee the estate.
In order for the Will to work as intended, it must adhere to proper procedures in accordance with state law.
General Requirements of
a Will in California
Each state's requirements of a Will and what makes it valid may differ somewhat, but California requires the following:
- The testator must have testamentary intent, meaning the testator subjectively intended to create the Will.
- The testator must have testamentary capacity, meaning that they understood they were creating the Will at the time of its execution.
- The Will must have been executed without the interference of fraud, duress, undue influence, or mistake.
- The Will must have been duly executed, with two witnesses who are present when you sign the Will.
Intestacy: The "Default" Method
if You Die Without a Will
If someone dies without a Will, this is known as dying "intestate." Should a person die intestate, intestacy laws will govern how your assets are distributed. There are key reasons to create a Will, rather than relying on intestacy laws to devise your property, and the reasons relate to family and probate matters.
Intestacy laws aim to pass property in a way that most people would want it to pass, which basically means any property is passed to immediate family members first: spouses, children, parents, siblings, grandparents, and so on. Intestacy laws govern which order the assets are distributed.
The problem here is that if you have stopped a relationship with a family member, that will not be taken into consideration under intestacy laws. This could result in property, (or even the custody of a minor child) passing to a relative whom you would not wish to be a beneficiary and/or guardian.
Property governed by intestacy laws must pass through probate court, which can be expensive and time-consuming. That said, a valid Will also goes through probate to implement its provisions.
Further, there are other ways to distribute property according to your wishes while also avoiding probate completely. Speaking with an estate planning attorney will help you determine what will work best in your specific situation and with your specific assets.
The Risks of “Do-It-Yourself” Wills
The expense and lack of control that comes from dying intestate, coupled with the perceived costs of hiring an attorney to write a Will, has led to a huge increase in the use of “do-it-yourself” (DIY) Wills. These forms, often found online for a fee, often claim to be just as good as a traditional Will prepared by an experienced attorney.
These "one size fits all" documents, however, may not assist with your particular circumstances, or the form may not comply with California law, or it may have incorrect instructions as to how to execute the Will. The process to create a DIY will is often accompanied by mistakes that open the door for challenges to the validity of a Will upon your death. In fact, a court may refuse to admit the Will to probate.
Contact an Attorney for Wills
If you are considering making a Last Will and Testament, make sure that you comply with the law and provide very specific instructions in the Will. At Greensides Law, P.C., our estate planning attorney helps clients in Santa Clara County create Wills that comply with state laws so you don't have to worry about it. We know how hard you worked for your assets and understand why it is so important to distribute your assets in the way you see fit to do it. Contact us by filling out the online form or calling us directly at (408) 660-8050 to schedule a telephone or online appointment.