One of the most common and effective tools in estate planning is a will. A will is a legal document through which you express your preferences for the handling of your estate after death. It includes instructions for payment of debts, appointment of guardians for minor children and distribution of estate assets. It also includes designation of someone you trust to serve as the executor of the estate to handle matters on your behalf.
The different types of wills in California all serve the same basic purpose, which is to give you control over the handling and ultimate distribution of your estate following your death. A closer look at each type should help you decide with the assistance of an estate planning attorney on the one best suited to your needs.
Formalities of a will under California law
The formalities that must be followed for a will to be valid and enforceable in California include:
· It must be in writing.
· It must be signed by the person making it, known as the “testator,” or by another person signing it in the presence and on behalf of the testator.
· It must bear the signatures of at least two people who at the same time either witnessed the testator signing the document or to whom the testator acknowledged his or her signature on it.
A document written in the handwriting of and signed by a testator may be accepted as a valid holographic will even though it lacks the signatures of two witnesses. The absence of witnesses capable of attesting to the testator’s acknowledgment of the document as being their will makes holographic wills more susceptible to court challenges. For example, siblings unhappy about the distribution of assets may claim the will does not reflect the true wishes of the deceased.
Types of wills
Several different types of wills exist to accomplish an orderly distribution of the estate you leave when you die. The most common of them in California include:
· Simple will.
· Testamentary trust will.
· Joint will.
A simple will contains directions for the handling of your estate by the person chosen as the executor. It may contain instructions for payment of debts and expenses of the estate administration and conclude with a plan for distribution of the remaining assets to the people you name and in the amounts that you direct.
Testamentary trust wills do the same thing as simple wills, but they contain directions for the creation of a trust. Some or all of the assets from your estate are transferred by your executor into the trust where they are managed and controlled by a trustee chosen by you. Testamentary trusts may be used to transfer assets for the benefit of a minor child or for a beneficiary who you believe to be incapable of managing them on their own.
A joint will lets a married couple use a single document to accomplish what would normally be done with separate wills. Upon the death of the first spouse, the entire estate goes to the surviving spouse. When that spouse dies, the estate passes to the children or other beneficiaries according to the terms of the will. The inability of a surviving spouse to change or revoke the will after the death of the other spouse is something to consider before deciding on this type of will.