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 personal goal at Gilliland Law, APC. Contact us online or at (760) 918-5630 to learn more about wills specifically and estate planning generally so that you and your heirs do not get surprised in a way that is to your detriment.
What is the Purpose of a Will in California?
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, even after they die.
- They incentivize productivity by allowing people to control what happens to their property after death.
- They protect the decedent's 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 San Diego
Each state's requirements of a Will and what makes it valid may differ somewhat, but all states have four requirements that are true no matter what.
- 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 through a proper ceremony––for example, signing the Will and having witnesses per your state's law were completed properly.
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, the state will step in and distribute any property. There are two 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, like children, then parents, siblings, grandparents, and so on. Intestacy laws only benefit you if you are happy about your hard-earned property going to your immediate family member.
The problem here is that if you have stopped a relationship with a family member, that may not be taken into consideration when the State steps in to disburse your assets. 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 law must pass through probate court, first, which can be expensive and time-consuming, leaving fewer benefits and more burdens for your loved ones. That said, a valid Will also goes through probate to implement its provisions. The only difference is a well-crafted last will and testament will go through probate rather quickly and without incident because it's harder for someone to challenge it.
Further, there are other ways to distribute property according to your wishes while also avoiding probate completely. Speaking with an estate planning lawyer will help you determine what will work best in your specific situation and with your specific assets.
The Risks of “Do-It-Yourself” Wills in California
The expense and lack of control that comes from dying intestate, coupled with the perceived costs of hiring a lawyer to write a will, has led to a huge increase in the use of “do-it-yourself” wills. These forms, often found online for a fee, claim to be just as good as a traditional will prepared by an experienced attorney.
These "one size fits all" documents, however, are not tailored to your unique circumstances. 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 dismiss the Will completely.
If you decide to try a DIY Will first, keep the following five tips in mind:
- Define who your family members are. For example, if you brought children into a second marriage, make sure who constitutes “family” in your Will.
- Assign and direct the executor to pay debts and expenses, including anything from credit cards to personal loans to funeral expenses.
- Make specific bequests or gifts so that there is no confusion about who gets what.
- Provide a catch-all clause for assets that you do not specifically give away.
- Finally, be specific about people and property as much as you can. Wherever there is any ambiguity there is also room for a challenge.
That said, in the least, it is a good idea to have an attorney review your last will and testament to make sure it's in compliance with state and federal laws.
Contact an Attorney for Wills in California
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 Gilliland Law, APC, our estate planning attorney helps clients in San Diego create strong 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 (760) 918-5630.