What most estate planning attorneys will tell you is that, when it comes to estate planning, you need to have a will at the very least. A basic will is relatively simple to draft with the help of an attorney. Without a will, how your property will be distributed is determined by the laws of enforced by the California probate court. If you have heard of a holographic will, you may be wondering what it is and whether such a will would be allowed in your State. Here is what you need to know.
The basic requirements for a will
Basically, a will should include provision that set out who you want your property to go to, as well as, naming a guardian to take care of your minor children in the event of your death. A will should also include the name of the person who you want to have the authority to carry out the terms of your will.
When is a basic will appropriate?
In some cases, a simple will might be sufficient to satisfy your goals. In situations where a client has limited property, owned in the client’s name alone, and the client wants to leave that property to his or her closest living relative, then a simple will may be appropriate. However, a simple will is not a good idea if a client has a significant amount of assets, and those assets are more complex in nature, as well as many different types of beneficiaries.
What is a holographic will?
A holographic will is one that, if it meets certain requirements, will not have to be proven valid in the California probate court. Specifically, the will does not require the signatures of witnesses, as normally required for a valid will. The basic requirements are that the will is written in the testator’s own handwriting and signed by the testator, as well. It goes without saying that the terms of the will must be legible.
The date of execution must be clear
In order for a holographic will to be valid, the California probate court must be able to determine when the will was executed. For that reason, in creating a holographic will, it is important for the testator to include the date of execution in the document. The reason the date of execution is so important is that the most recent will is the one that is typically considered legally valid.
You must still have 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.
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 holographic wills, or any other estate planning needs, please contact the Schomer Law Group for a consultation, either online or by calling us at (310) 337-7696.
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