A will is a document that reflects your last and final will regarding your belongings, as well as your current dependents. Through a last will and testament, you should aim to clearly define who gets what within the standards required of your state’s laws.
When drafting, preparing, finalizing, and notarizing a will, it pays to be aware of the basics: a will should be witnessed, its creator should be at least 18 years of age, and the creator (testator) must appoint an executor to administrate the will once he or she passes away.
However, that does not mean all wills are created equal and are the same size or shape. There are many different types of wills and various drafting and preparation methods ways - although some will suit you much better than others, and there are some that should ideally be avoided entirely.
Simple wills are written without additional clauses, and, as the name implies, they only fulfill one major purpose: they dictate who gets what. Some might argue that a simple will authoritatively divide property equally between the surviving next of kin.
Still, a simple will is any last will and testament that only lists beneficiaries and their respective share of the estate, alongside one or more potential administrators/executors. It’s within a person’s interest to name more than one executor if the first pick refuses or passes away before the will can be amended.
A set of simple rules and standards apply. Simple wills today are usually digitally typed, printed, and signed by the testator and several witnesses. Once the will is notarized, it is official. Wills can be amended, and similarly, these amendments require witnesses.
Witnesses are mandatory to ensure that a will isn’t written and signed under duress or coercion, or faked. A will created without any witnesses may be argued as valid but must in some shape or form be proven to be legitimate in a probate court. Not all states accept wills that have not been witnessed.
Holographic wills are wills that are usually found as handwritten notes. They may be deathbed wills or written in conditions where other means of creating a will were not available (such as in a combat zone). Holographic wills can be the results of a life-threatening situation or a last-minute decision to create a will before death. Not all states accept holographic wills.
California, however, recognizes holographic wills. These are by no shape or form ideal and can easily be challenged and invalidated if it’s proven that they were written in a time when the testator had limited mental faculties – but if a holographic will is properly dated, entirely handwritten, and displays testamentary capacity, it may be accepted.
Oral wills are exceptionally hard to prove, as they are purely verbal. Also known as a nuncupative will, an oral will's validity is highly limited and typically only reserved for extreme situations, such as a soldier’s last wish on the battlefield. Oral wills are complicated to prove.
Joint wills are an option for a married couple and act as a single document that becomes two separate wills when one person passes away. In a joint will, the surviving spouse becomes the decedent’s trustee, managing all their assets' distribution and administration. Joint wills are rigid but can be a cost-effective way for a married couple to design their estate plan.
Mutual wills are similar to joint wills in that they consist of a single will that acts as a separate will for two people. Still, both sides agree to each other’s beneficiaries and clauses in a mutual will, with the caveat that one cannot revoke nor amend the other. Mutual wills are very rigid because they require both parties’ mutual consent to make any changes.
Among all the different types of wills to choose from, testamentary wills are a favorite. A testamentary will is unique because rather than simply listing beneficiaries, it creates and activates a trust created separately and then funded the contents of itself (the will) into the trust. A will can have more than one testamentary trust, but you can only have one valid will.
Trusts are agreements between a grantor, a successor trustee, and a series of beneficiaries. Once a testamentary trust goes into effect, it is the trustee’s job to manage the trust's contents and distribute them among the trust’s beneficiaries as per the grantor’s wishes. The contents of a trust do not need to pass through probate.
Despite a somewhat misleading name, a living will is not in any shape or form related to the last will and testament. Actually, it refers to an entirely different estate planning document that services as a method of recording a person’s wishes regarding their medical care should they find themselves unable to respond or communicate. Living wills:
Among all the different types of wills to choose from, living wills are instrumental in cases where certain medical procedures are likely to be considered in the not-so-distant future. However, there are other ways to handle end-of-life care and ensure that your wishes are upheld, even when you aren’t around to defend them.
Regardless of what you decide to do about your estate plan, it’s imperative to seek professional legal help when sitting down to design an estate plan. Whether all you plan to do is draft a single simple will or a series of trusts to bypass the probate process and resolve what would otherwise be an immensely complex estate, having an experienced professional around can make a serious difference – especially when a single clerical error can set you and your family back thousands of dollars, and prolong an already potentially lengthy endeavor.
Founded in 1975 by L. Rob Werner and serving California for over 48 years, our dedicated attorneys are available for clients, friends, and family members to receive the legal help they need and deserve. You can trust in our experience and reputation to help navigate you through your unique legal matters.
Whether you need help creating a living trust or navigating probate, our living trust law firm's compassionate team of estate planning lawyers and probate lawyers are here to help you and ready to answer your questions.
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