November 17, 2011

Writing a Will

Writing a will is not an overly cumbersome process. The following are some provisions that all wills should contain. Of note, the term for a person who writes a will is "testator." A person who dies with a will dies "testate" whereas a person who dies without a will dies "intestate." 

Your full name and any nicknames you go by 

Clearly it would be difficult to administer a will if the testator was anonymous. Moreover, it is important to include any nicknames you might commonly go by. For example, past clients have routinely gone by their nicknames. Even their bank accounts or driver's license had their nicknames on the account (don't ask how they did this).

The point is to be able to ascertain who in fact wrote the will. 

Place of residence 

The common practice is to list the county of residence, rather than the city of residence, and the state of residence. There is no legal requirement to do so but it is good practice. If you do not know what county you reside in, well, just Google the city you live in and Wikipedia can tell you.

California law says that a will needs to be probate in the county of residence of the decedent. Hence including the county of residence would prove helpful for the executor. Prob C § 705. 

Name of spouse and/or children 

California is a community property state. Each spouse has a 50% community property interest in the entire marital estate. By omitting a spouse in their will, the testator runs the risk that the omitted spouse can claim an intestate share of the testator's estate despite their omission. Prob C §§100-101.  There are exceptions to this rule though. Prob C §21611.

Similarly, if a testator fails to mention his or her children, such omitted children can claim a share of the testator's estate, just like a spouse, despite their omission. Prob C § 21620. Although, again, there are exceptions to this general rule. Prob C § 21621. 

A No-Will Contract 

Yes, a person can write a contract which specifies how they will write their will. Prob C § 21700. I have never personally seen a will contract but have read about them. Regardless, it is good practice to include a no-will contract clause to erase any doubt. 

List of bequests

People read wills because they want to see what they will inherit. Obviously then, it is important to clearly delineate what item goes to which person. For example, a testator can write "my ATT stock to my cousin Bob" suffices.

It is not necessary to be overly verbose or complicated when making bequests. Just pick an item and list a person. 

Name an Executor 

The executor is a person nominated in a will to be appointed by the court to administer the estate at the testator's death.The executor can be virtually anyone, a relative, a family friend, a neighbor or a corporation. 

Just don't pick the crazy neighbor who refuses to mow his lawn, the relative who has filed bankruptcy multiple times or the friend who likes to buy products he sees while watching infomercials at night. 

Testator's signature 

The testator has a few options as to who can sign the will. (1) The testator can sign the will,  (2) a person  in the testator's presence by the testator's direction, or (3)a court-appointed conservator of the testator can sign as well. Prob C § 6110.

The norm is to have the testator sign. 

Attestation Clauses 

California law requires that 2 witnesses sign a formal will. Prob C § 6110. However, a holographic will does not require any witnesses to sign. Prob C § 6111. Still, holographic wills are ripe for fraud and undue influence. Hence, the writing of a holographic will is often discouraged.