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What is a Last Will and Testament?

A Last Will and Testament is a legal document that outlines a person's wishes regarding the distribution of their estate after death. Per California laws (Probate Code Section 6100 to 6243 ), to construct a valid Last Testament, the testator must:

  • Be 18 years or older
  • Have testamentary intent, and the testament must express the individual's wishes.
  • Have the testamentary capacity to know the extent of their assets and liabilities and understand the consequences of creating a Last Will
  • Sign the testament in the presence of at least two witnesses (if it is an attested Will), and the witnesses must also append their signatures to the Will in the presence of the principal.

Last Will and Testament vs Living Will: What’s the difference?

A Last Will and Testament is a document that provides instructions on how a dead person’s estate should be disposed of. Contrariwise, a Living Will or an Advanced Directive is a document that outlines an individual's wishes regarding their medical treatments and end-of-life care if they cannot communicate their preferences due to sickness or injuries.

  Last Will and Testament Living Will or Advanced Directives
Purpose A Last Will outlines how a person's estate will be distributed among beneficiaries after the individual's death A Living Will describes a person's preferences for medical treatments or end-of-life care should the person become incapacitated and unable to make decisions or communicate their wishes
Effective Time A Last Will becomes effective by order of the probate court after the death of the testator Living Wills become effective within the lifetime of the declarant
Scope of Decisions A Testament deals with matters relating to estates. These include instructions on property distribution and guardianship. Living Will outlines instructions on medical treatments or care preferences such as life support, rescue oration, and organ donation
Legal Requirements A California Last Will must be witnessed and signed in the presence of the testator by at least two adults who are non-beneficiaries of the estate A Living Will must be signed by two adults or notarized in public
Revocation A Last Will can be reviewed, updated, or revoked by the testator at any time while alive as long as they have the testamentary capacity to do so. A testator can revoke a Living Will to reflect new preferences if they have sound mental health and the capacity to communicate their wishes.

Who Can Make a Last Will and Testament?

In California, any adult with testamentary capacity can construct a Last Testament. In addition, a testator must understand the consequences of creating a testament and do so by free will and not under duress or coercion.

Why Would You Need a Last Will and Testament in California?

Creating a Last Will in California confers several benefits and poses potential risks.

Benefits of having a Last Will and Testament

Having Last Wills in California ensures that individuals determine who gets a part or all of their estates after death. A Last Will guarantees the right of an individual to choose a guardian for minor children, donate to charities, designate a caregiver for pets, and state who gets a part of the estate who does not. In addition, having a Testament prevents family disputes over the distribution of a dead person's estate.

Potential risks of not having a Last Will and Testament

In California, if the deceased does not have a will, the state's intestacy law will be set in place, and the government will distribute the dead person's estate according to the California Probate Code. The absence of a Will leads to the inability of the deceased to determine who will inherit their estates and may result in:

  • Disputes among family members who feel entitled to the deceased person's estate
  • Unintended beneficiaries of the estate who may not benefit from the estate if the deceased had executed a Will
  • Delay in distribution of the assets and financial burden due to costs of a court-appointed executor to oversee the distribution of the properties. These additional costs may deplete the estate
  • Court-appointed guardians for minors whom the deceased may not approve.

Examples of situations where a Last Will and Testament may be useful

Having a Will in California is useful for:

  • Donation to charities
  • Business succession
  • Guardianship for minors
  • Distribution of assets
  • Making provision for pets after the death of their owners.

When does your Last Will and Testament take effect in California?

A Last Will does not become effective immediately after it is created. Until a testator dies, they retain the control of their assets. In California, after the decedent's death, the Will must be presented to the probate court to determine its authenticity. Distribution of estate begins after the probate court confirms the validity of the testament. The court ensures that the distribution is according to the terms of the document.

In California, the timing of notice to beneficiaries of a Will varies with the complexity of the estate. However, beneficiaries are given notice within three months after the probate court receives the Will.

How to Create a Last Will and Testament in California

Per California laws, a person seeking to create a Will:

  • Must be 18 years or older
  • Be of sound mental health
  • Have the intent to create a Will
  • Sign the Will document (if it is an attested Will) or have someone sign it in their presence and in the presence of two or more adult witnesses who will also sign the document in the presence of the principal.

Also, a holographic will must be created using the testator’s handwriting and does not require the signatures of the witnesses; it must be signed by the testator to be valid.

For persons who want to create a valid Last Testament in California, in addition to being an adult and having the testamentary capacity to create a Will, the following steps may help:

  • Draft the Will in unambiguous language stating how the assets should be distributed
  • Sign the Will in the presence of two or more witnesses who must also sign the document
  • A holographic will must be written entirely in the testator's handwriting and only signed by the declarant.
  • If there is a need to revoke the will, do so by writing, orally, or physically destroying the document by burning, tearing, shredding, or mutilation. If the revocation is in written form, a testator must sign it in the presence of the witnesses. Also, oral revocation must be in the presence of the witnesses. Keep a copy of the revocation document as evidence to avoid confusion.
  • Keep the Will in a safe location.

The amount it costs to create a Will in California varies with several factors. The following may add to the cost of creating a Last Will in California:

  • Attorney fees: These fees may arise if the testator engages the services of legal professionals to create the Will. How much it will cost may depend on the experience of the attorney and the complexity of the Will
  • Legal documents preparation fees
  • Notary fees: The testator may have to pay a fee to have the public notarize the document
  • Witness fees: Some individuals in California may charge a fee to witness and sign a Will.

Preparing a Last Will and Testament: How to Write One in California

To create a Last Will in California, a testator must show testamentary capacity and provide information on how their estate should be distributed. Certain information is necessary to fill out a California Last Will form, while some are optional. The table outlines what information should and should not be included when creating a Will in California.

What Must Be Included Optional Information What Should not be Included
  • Full legal name and address
  • List of assets and liabilities (these include outstanding taxes on the estate)
  • The executor of the estate
  • Testamentary declaration of mental state
  • Name of beneficiaries
  • Revocation of any previous Will
  • Signature of the testator(for attested Will) and those of two witnesses.
  • Funeral and burial arrangements
  • Disinheritance clause - Digital Assets handling instructions
  • Guardian for minor children
  • Successor agents.
  • Instructions to perform illegal activities
  • Instructions to carry out excessively burdensome or impossible acts
  • Non-probate assets such as those held in tenancy or assets with designated beneficiaries (this includes retirement accounts and life insurance policies)
  • Forgery or fraud.

To properly execute a Will in California, do the following:

  • Draft the Will using a template or software. The Will must reflect the wishes of the principal. If you doubt the requirements for a valid Last Will in California, contact a legal professional for advice.
  • Sign the Will with two adult witnesses, who must also append their signatures to the document. A holographic Will does not require the witnesses' signatures.
  • Notarize the Will (optional) to add authenticity to the document
  • Keep the Will in a safe place
  • Inform relevant parties (the executor and family members) about the existence of the Will.
  • Record the Will at the county office (optional) as legal evidence and guard against loss or destruction.

How often must I update my Last Will and Testament?

Factors that may necessitate updating a Last Will and Testament

How often a testator should codicil or amend a Last Will depends on several factors. However, it is advisable to update a Will regularly if there is a change in health or financial status, childbirth, or the California Probate Codes.

Legal requirements for updating a Last Will and Testament in California

To update a Will, California laws require that:

  • A testator must be 18 years or older, mentally capable, and understand the consequences of their actions
  • The review must reflect the wishes of the declarant
  • A testator must not be coerced or forced to update a Will
  • A Last Will update must be witnessed by at least two adults who are non-beneficiaries of the testator's estate
  • A Will update must be in writing and signed by the witnesses in the testator's presence.

Note: A holographic will composed in the testator's handwriting does not require the witnesses to sign it.

Recommendations for reviewing and updating a Last Will and Testament

To update a Last Will in California, a testator must have the testamentary capacity to understand their actions, revoke any previous Will, and properly execute the new Will by signing it in the presence of witnesses. The following steps are guidelines on how to update a Last Will in California:

  • Set a timeframe on when to update a Last Will and enforce it
  • Consider a review if there is a:
    • Life-changing events such as marriage, birth, divorce, or death within the family
    • Change in financial or health status
    • Review or change in the California Probate Codes or laws that impact probate matters
    • Change in personal preferences or family dynamics.

Do I Need a Lawyer to Create a Last Will and Testament in California?

California law does not mandate using lawyers to create a Last Will. However, the complexity of executing some Wills may make it advisable to engage the services of legal professionals. For instance, a testator may need a lawyer to create a Will that involves:

  • Assets of large corporations
  • Properties under litigation or tied up in prenuptial agreement
  • Assets with existing tax liabilities.

What’s the Difference between a Last Will and Testament, a Living Trust, and a Medical Power of Attorney?

Last Wills, Living Trusts, and Medical Powers of Attorney are important documents that convey the wishes and preferences of their creators. However, there are differences in their functions and when they become effective. The table outlines some of the differences between the three mentioned documents.

  Last Will Living Trust Medical Power of Attorney
Scope Specifies how the estate of an individual will be distributed after their death Manages and distributes the assets of an individual while they are alive Appoints someone to make decisions on medical treatments and end-of-life care when a person is incapacitated and unable to make such decisions
Administrator Appoints an executor to carry the instructions outlined in the Will after the death of the testator Appoints a trustee to manage and distribute the assets while the grantor is still alive Designates a trusted person as an agent to make decisions on healthcare and communicate with the healthcare providers
Probate Becomes a public record once it is presented to the court and requires a court-supervised process to validate the Will and distribute the assets It is a private process and does require the court to carry out the distribution of assets Does not require the court to get involved
Takes Effect Becomes effective after the death of the testator. Is effective while the grantor is alive. Commence when the principal is incapacitated by illness or injury and cannot make decisions.

Can a Last Will and Testament Be Challenged?

Yes, a Will can be challenged in California under certain circumstances. In California, a Last Will can be challenged if there is a:

  • Lack of testamentary capacity
  • Undue influence or coercion of the testator to create or modify a Will against their wishes
  • Fraud or forgery. For instance, if the signatures in the document were forged
  • Failure to adhere to the rules of creating a Last Will in California
  • Suspicious mistakes in the Will document.

To have the legal standing to challenge a Will in California, the challenger must be a beneficiary named in the current or previous Will, a creditor, or an intestate heir to the estate. In California, an aggrieved person has two windows of opportunity to challenge a Will. These are before the will is submitted to the probate court and within 120 days from the date of submission to the probate court. To challenge a Will in California, apply the following steps:

  • Gather evidence to support the claim that the court should invalidate the Will.
  • File a petition to probate court where the decedent lived before death
  • Serve notice of the petition to all relevant parties to the Will
  • Present evidence and argument in court to substantiate the claim for invalidation of the Will
  • If the ruling is unfavorable and there is a strong belief that the judgment was wrong, appeal to a higher court.
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