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State Specific Requirements For a Last Will and Testament - Werner Law Firm

State-Specific Requirements for a Last Will and Testament

Troy Werner and his family

Written by Troy Werner

Troy Werner has been an indispensable asset to The Werner Law Firm since joining in 2009, providing exceptional legal service to its clients.

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POSTED ON: September 24, 2018

The United States features 50 separate states, in addition to the federal district and 14 territories. Despite being a single country united under one flag, local laws can wildly vary from state to state. In some states, there are laws specifically against training a bear to wrestle (Alabama). In other states, a liquor store cannot […]

The United States features 50 separate states, in addition to the federal district and 14 territories. Despite being a single country united under one flag, local laws can wildly vary from state to state. In some states, there are laws specifically against training a bear to wrestle (Alabama). In other states, a liquor store cannot sell chilled soda – but can sell it at room temperature (Indiana). In California, eating frogs is okay, but only if they did not die in a frog-jumping contest.

There are many ridiculous laws that would make most people do a double-take, including the residents of the state in question. Often, the weirdest laws are drafted to address the aftermath of a certain scandal or incident– so behind every ridiculous law is an equally ridiculous story.

Yet aside from the more obvious and glaring differences between local laws, states also feature a wide array of more nuanced differences on various topics, from car insurance and divorce, to inheritance and estate planning. If you wish to draft a last will and testament for yourself, it is important to ensure that you know what your state’s requirements are – and how they might differ from other states, in case you ever feel like moving.

Where Is Your Last Will Valid?

Some people are not particularly prone to staying rooted in the same state for very long. There are a variety of reasons to move from state-to-state, from job opportunities to new relationships or to simply escape bad memories. But the question is: if you created your will in state A, is it valid in state B?

We have mentioned that state laws are different – yet if you have drafted a legally-valid will in whatever state you were in at the time, chances are it will be valid if you move. There are still things to take into consideration. For one, some states require that your executor – the personal representative in charge of overseeing and administrating the will – reside in the state in which you pass away. Which means that if your chosen personal representative is a relative in another state, the probate court may appoint someone else.

Another consideration to make is that a will must be testified by witnesses to be considered valid to a probate court. If your witnesses are in another state, they will have to travel to your state to confirm the will. The smartest thing to do is to consult a local estate planning professional and seek advice on whether to amend your will – and how. Do not forget that while these documents are meant to outlive you, they too have expiration dates. Consider updating your estate plan at least once a year, as well as whenever a life-changing event occurs.

California’s Requirements for a Last Will and Testament

There are six basic requirements for creating a last will and testament in the state of California. They are as follows: The testator (creator of the will) must be at least 18 years old.

      • The testator must be capable of making decisions and have all their mental faculties to avoid a fraudulent will.
      • The testator must draft and sign a written will. Oral wills are not valid in court if a written will exists.
      • A will must have beneficiaries. The beneficiaries may be individuals (usually the testator’s family), corporations, societies, countries, states, cities, and several other entities.
      • The testator must sign the will, alongside at least two witnesses. If the testator cannot sign the will for whatever reason, then someone with legally-binding instructions from the testator may do so – alternatively, the testator’s conservator under court order to make a will may sign it.

Although oral wills are not valid, and a will must be written, California will recognize both holographic wills (handwritten wills) and California Statutory Wills (template or fill-in-the-blank wills). If a will is written, signed by the testator or their equivalent, and witnessed by at least two people, it is likely to be valid. However, creating a will in California requires that you make a few other state-specific considerations.

Inheritance in the Golden State

There are three major things to consider when making estate plans in California. One is the limit for expedited probate, the second is how intestate laws function in California, and the third is how inheritance taxes work.

California allows estates of less than $150,000 in total value to go through an expedited probate process, essentially eliminating a lot of the hassle associated with the inheritance process. Like many other states, intestate in California determines that when a person dies, half of what they own goes to their spouse, while the other half goes to their next of kin, starting with the children. In the event they are unmarried or widowed, all of what they own transfers to the next of kin.

Finally, California does not have state estate taxes. Federal estate taxes are still valid, but there is no inheritance tax or additional local estate tax. Because inherited property is not a usual form of income, there is no income tax on inherited parts of an estate, either. An estate may still be subject to creditors, unless an estate plan takes precautions for asset protection.

Creating a Will – DIY or Professionally Made?

There are many arguments for why a living trust should be drafted professionally, and polished with the help of someone who has years of experience in matters of estate planning. However, the argument could be made that for a simpler document like a last will and testament, the need for experience and nuance is not quite as high, correct? Not necessarily.

Like a living trust, creating a last will and testament yourself with a few weeks of research is not the same as going to an estate planning professional and asking for help in the creation of a will. While you might be tempted to save some upfront costs by making your own will, there are quite a few arguments against doing so, even if you are a professional lawyer in a field other than inheritance or estate planning.

      1. For one, creating a will with an attorney is not as costly as you might expect. While a trust is a different matter, a will can be set up on a budget, and typically costs the tiniest fraction of your total estate.
      2. Secondly, just because it is a simpler document does not mean the margin for error is any different. The danger with creating your own will is that any clerical errors will turn into massive upsets in the future, costing you or your family thousands of dollars, countless hours, and a massive amount of stress. All that can be avoided simply by hiring a professional. Having a proper estate plan can afford you peace of mind, and ensure that if anything happens to you, your family is taken care of. To many, that is priceless, let alone the comparably minuscule cost of setting up a will.
      3. Finally, when it comes to estate planning and local law, do not solely rely on online information to make your legal decisions. State laws can change, and they frequently do. It is important to always contact a local professional on these matters before you make a legally-binding decision to amend your will.
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