Will

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What is a Will?

A will is the legal instrument

that permits a person, the testator, to make decisions on how his estate will be managed and distributed after his death. In the past, there was a distinction between the will dispose personal or real property. Over time the distinction has disappeared so that a will, often called a “last will and testament,” disposes of both real and personal property.
If a person does not leave a will, or the will is declared invalid, the person will have died “intestate”, resulting in the distribution of the estate according to the laws of Descent and Distribution of the state in which the person resided. Because of the importance of a will, the state law requires it to have certain elements to be valid. Apart from these elements, a will may be ruled invalid as if the testator made the will as the result of undue influence, fraud, or mistake.

A will serves a variety of important purposes.

A will serves a variety of important purposes. It enables a person to select his heirs rather than allowing the state laws of descent and distribution to choose the heirs, who, although blood relatives, might be people the testator dislikes or with whom he is unacquainted. A will allows a person to decide which individual could best serve as the executor of his estate, distributing the property fairly to the beneficiaries while protecting their interests, rather than allowing a court to appoint a stranger to serve as administrator. A will safeguards a person’s right to select an individual to serve as guardian to raise his young children in the event of his death.

A link to the statutory will under Probated Code § 6240 can be accessed here.

Formalities of a valid will

Every state has statutes prescribing the formalities in making a valid will. The requirements relate to the writing, signing, witnessing, or attestation of the will in addition to its publication. These requirements safeguard that the will carries out the real intention of the will maker from coercion and manipulation.

Wills usually must be in writing but can be in any language and inscribed with any material or device on any substance that can result in a permanent record. Generally, most wills are printed on paper to satisfy this requirement. California is one of the few states recognize holographic will (handwritten Will), whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator (CA Probate Code §6111 (a))

In California, the laws regarding the valid execution and witnessing of a Will are set forth in the California Probate Code; Division 6 Wills and Intestate Succession; Part 1 Wills; Chapter 1 General Provisions Section 6100; Chapter 2 Execution of Wills, Sections 6110 & 6112; and, Division 7 Administration of Estates of Decedents; Part 2 Opening Estate Administration; Chapter 3 Probate of Will; Article 2 Proof of Will, Section 8220.

In California, any person eighteen (18) or more years of age who is of sound mind may make a Will.  “Sound mind” generally means someone who has not been deemed incompetent in a prior legal proceeding.

A Will must be in writing, signed by the testator and by two witnesses.  If the testator is unable to physically sign his name he may direct another party to do it for him.  The Will may also be signed by a conservator pursuant to a court order to make the Will.  These parties may not be counted as one of the two required witnesses.  Each witness must either see the testator sign the Will or be told by the testator that the signature on the Will is his, must understand that the document is the testator’s Will, and must sign the Will in the testator’s presence and in the presence of the other witness.

Witnesses to a Will must be generally competent. Generally, it is recommended that the witnesses to the Will be “disinterested”, which means that they are not beneficiaries of the Will.  A Will is not invalid if witnessed by an interested witness, but if there are not at least two other disinterested witnesses to the Will, the fact that the Will leaves a gift to a subscribing witness creates a presumption that the witness procured the gift by duress,  menace, fraud, or undue influence.  If a gift fails because the witness is not able to rebut the presumption, the interested witness must forfeit the portion of the gift that exceeds the value they would have received if the testator had died intestate.

Pour over will

n. a will of a person who has already executed a trust in which all property is designated to be distributed or managed upon the death of the person whose possessions are in trust, leaving all property to the trust. A pour over will is a protection which is intended to guarantee that any assets which somehow were not included in the trust become assets of the trust upon the party’s death. A pour over will often provide that if the trust is invalid in whole or in part, the distribution under the will must be made under the same terms as stated in the invalid trust.