April 20, 2011

What is a Will

The most recognizable estate planning document is the will. Wills have been around for centuries although the relevance of wills has steadily declined due to the advent of trusts. Regardless, wills still play an important role in the estate planning process as most individuals do not need a trust to efficiently and effectively transfer their estate upon their passing. Here are some frequently asked questions in regards to wills. For reference, a “testator” is the person who writes the will. 

1. What is a will? 

A will is a “document by which a person directs his or her estate to be distributed upon their death.” Black’s Law Dictionary (8th Edition, 2004). 

2. Who can write a will? 

In order to write a will, testamentary capacity, the individual must be 18 or more years of age who is of sound mind may make a will. Prob C § 6100.

Clearly the first requirement, the age restriction, is a simple requirement that requires little explanation. An individual is either at least 18 years old or not.

As for the “sound mind” aspect, it is usually evident where a person lacks the capacity to write a will. Furthermore, there is a presumption that any adult has the capacity to write a will. Prob C § 810. 

Regardless, there are occasions where the individual lacks testamentary capacity and the will’s nullification follows. For example, in one case an uncle left his estate to his attorney and his banker (quite possibly the most vilified employment combination around) rather than his nephew because he believed that his nephew had killed his mother even though the nephew had not yet been born at the time of her death. Estate of Martin (1969) 270 CA2d 506. 

3. Does a will have to be written in English? 

No, surprisingly a will does not have to be written in English in order for it to be probated. Estate of Jepson (1918) 178 C 257, 172 P 1107 (German); Estate of Guerrero (1986) 183 CA3d 723 (Spanish). However, the English language translation must be attached to the petition for probate of the will in the foreign language. Prob C § 8002(b)(2). 

4. How many pages is a will? 

A will’s length is dependent upon the testator’s ambitions. Some testators have elaborate plans as to how to distribute their estate which could take many pages to write. Whereas other testators have simple ideas for their estate’s distribution which only require a few pages to spell out. The wills that I have written are usually around 5 pages. 

5. What property can be disposed of in a will? 

A will governs the disposition of assets held solely in the testator's name that are not governed by beneficiary designation. Furthermore, if the estate is named as the beneficiary or if no designation has been made, a will can direct the distribution of such assets. 

6. When does a will become effective? 

A will becomes effective upon the testator’s death. This is in contrast to a revocable trust which becomes effective during the lifetime of the person who wrote the trust. 

7. Can I revoke a will? If so, how? 

Yes, a testator may revoke a will through two methods. A testator may revoke a will via a subsequent written instrument or through the mutilation of the previously executed will. Prob C §6120.

All the wills I write include an introductory clause which states “I revoke all wills and codicils that I have previously made.” This ensures that any client of mine will not have to worry about multiple wills floating around at the time of their passing. 

8. Can I amend a will? If so, how? 

Yes, a will can be amended. The name used for this amending document is a codicil. A codicil is a testamentary document that supplements, amends, qualifies, or republishes a prior testamentary document. Estate of Benson (1944) 62 CA2d 866. A valid codicil is part of the will to which it refers, and both instruments are construed together as one. 

9. Can a will create a trust? 

Yes, a will can create a trust. A will that creates a trust is called a testamentary trust. The necessary elements for creating a testamentary trust are identical to creating a revocable trust. 

10. Which person administers the will? 

The person entrusted with administering the will is the personal representative. 

11. Does California recognize an oral will? 

No, California does not recognize oral wills. The four kinds of wills allowable in California: witnessed, holographic, statutory and uniform international, all require that it be in writing. So please do not create a video outlining your testamentary desires, it will not work. 

12. Is a will notarized? 

No, wills are not notarized. 

No competent California attorney will tell you to get your will notarized. The reason for this is because the most common type of will, a witnessed will, requires the attestation of two witnesses. Thus, in the eyes of the law, a notary’s signature will not qualify as two witnesses. 

13. Who should witness my will? 

Any person competent to testify to the requisite facts may act as an attesting witness. Prob C §6112(a). However, there are legal consequences if the witness doubles as a beneficiary. Hence, it is prudent to have disinterested witnesses sign the will in order for a bequest to not be invalidated on the grounds that an interested witness signed the will. Of note, Probate Code §6112 does not prescribe an age requirement for a witness. In light of this, it is prudent to have the witness be at least 18 years old because minors are not exactly the most reliable witnesses. 

14. Are wills ever read? 

Yes, wills are read on television shows and in the movies.

In the real-world, however, wills are never read. Instead, wills are deposited with the local probate court. Therefore, the will because a public document whereby any person is free to inspect the will for their personal contentment. 

15. Does an attorney have to assist in the drafting of the will? 

There is no requirement that an attorney assist in the drafting of a will for a testator. A testator is free to draft a will absent the assistance of counsel. However, it is a criminal offense, namely a misdemeanor, for anybody other than an active member of the California State Bar to dispense legal advice in this state to an individual who is thinking about writing a will. Bus & P C §§ 6125-6126.

On a few occasions I have been asked to review a will that was written without the assistance of a lawyer. All of these wills were either not legally sufficient or drafted erroneously. For example, one will lacked the necessary number of witnesses while another will disposed of property outside the testator’s estate.

The people who write wills without the assistance of counsel are almost always motivated by economic reasons. There is nothing inherently wrong with being frugal. However, the problem is that these wills often fail to meet legal sufficiency or incorrectly dispose of the testator’s estate. Consequently, the testator will end up having to pay more money in the end because the previously made mistakes will need to be corrected and only then can a new will be drafted.