What many probate attorneys will tell you is that you need to at least have a will in your estate plan. A basic last will and testament is not always difficult to draft, especially with the help of one of our probate attorneys. For those who do not include a will in their estate plan, their property will be distributed to their heirs based on the California intestate succession laws, to which the probate court is bound. When it comes to estate planning and drafting a will, one of your options is to draft what is known as a holographic will. Let our probate attorneys explain what that is and help you decide whether you want to choose that option.
What are the basic provisions that you should include in your will?
Typically, basic wills should include instructions about how you want your assets to be distributed and to whom. A will can also include provisions that name a guardian for any children who may still be minors at the time of your death. Finally, your will should name an executor, that is the person you want to have the power to ensure that the provisions of your will are carried out and the will is properly probated through the probate process.
Situations where a basic will be sufficient
There are, indeed, situations where a basic will could be sufficient to accomplish your estate planning goals. Typically that is when you have a limited amount of simple assets that are owned solely in your name and you want to leave those assets to your closest living relatives. On the other hand, a simple will is not the best choice when you have a substantial number of high value assets, those assets are complicated, and you anticipate naming several different types of beneficiaries, in addition to your heirs.
Defining the holographic will
A holographic will is one that is written in your own handwriting and signed by you. This type of will, if it meets all of the requirements set by California probate law, does not require witness signatures and does not have to be proven valid. One of the most important requirements, however, is that the handwriting be legible.
Be sure that the date of execution is clear in the will
One of the most important elements required for a valid holographic will is the execution date. Basically, the California probate court needs to be certain when the will was executed. This is so important because the court needs to be able to determine whether the most recent version of the will be is being probated. If there are more than one holographic wills presented to the Court, the most recent one based on the date of execution will be found legally valid.
Testamentary capacity for the will to be valid
Just as with any other type of will, or other estate planning tool, the testator must have testamentary capacity at the time the holographic will is executed, in order for it to be valid. Having testamentary capacity means the testator must understand what his or her assets are and who his or her relatives are. Essentially, the testator must be able to understand that, in writing the will, he or she is determining who will receive those assets after the testator’s death.
Be sure to include provisions for the distribution of all of your assets
Just like with any other type of will, the terms included in a holographic will need to be specific in order to allow the California probate court to properly distribute your assets. Any assets that are not mentioned in the distribution provisions of a holographic will must be distributed instead pursuant to state law. If you need help making sure your provisions are appropriate, let our probate attorneys help.
You should have a will even if your estate is small
Contrary to what many people think, even if you have limited property, no home or vehicle, you still need a will. What you have to remember is that there are other considerations, including personal possessions that may have sentimental value to you or to others. It is important to consider your family heirlooms, wedding rings, and family photos. Another important thing to consider, if you have children, is who you want to serve as your child’s guardian, if they are still minors at the time of your death.
The laws of “intestate succession” will determine what happens if you don’t have a will
If you die “intestate,” that means dying without a valid will. Each state has its own laws and rules which set out how to handle a person’s estate if they die without a will. These laws generally address which descendants are in line to receive your property, which ones have priority over others, and what rights your spouse will have to your estate, if you are married. In California, if you die without a will, your assets will basically go to your closest relatives.
Join us for a FREE seminar! If you have questions regarding estate planning, trust contests, or any other trust administration issues, please contact the Schomer Law Group either online or by calling us in Los Angeles at (310) 337-7696, and in Orange County at (562) 346-3209.
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