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A Last Will and Testament in California: Safeguarding Your Wishes
A last will and testament is a crucial legal document that dictates how you want your property and assets to be distributed upon your death. It answers important questions like who will inherit your home, who will receive specific heirlooms or bank accounts, and who will care for your pets. These are just a few of the decisions that a well-drafted will addresses, ensuring that your wishes are respected and reducing the risk of disputes during probate.
At Bay Legal, PC, our California estate planning attorney will carefully review your assets and discuss your goals to draft a last will and testament that reflects your wishes and stands up to legal scrutiny. Our goal is to ensure your current and future plans are realized, providing peace of mind for you and your loved ones.
Contact us online or at 650-374-7900 to learn more about wills specifically and estate planning generally so that you and your heirs do not get surprised in a way that is to your detriment.
What is the Purpose of a Will in California?
The person who creates a will is known as the testator. A will allows the testator to control the distribution of their property and assets after their death by naming specific beneficiaries. It also enables the testator to appoint a guardian for minor children and choose an executor to manage their estate. A will serves several key purposes:
- Control Over Asset Distribution: A will ensures that your property is distributed according to your wishes rather than being dictated by state intestacy laws.
- Incentivizing Productivity: A will allows you to reward family members or others who have contributed to your life or legacy.
- Protection of Minor Children: You can designate a guardian for your minor children, ensuring they are cared for by someone you trust.
- Appointment of an Executor: You can select a trusted individual to oversee the administration of your estate.
To be effective, a will must comply with California's legal requirements.
General Requirements of a Will in California
While the specific requirements for a valid will can vary by state, California law has four essential elements:
- Testamentary Intent: The testator must have the clear intention to create a will.
- Testamentary Capacity: The testator must understand the nature of creating a will, the extent of their assets, and the impact of the will's provisions at the time of its execution.
- Voluntary Execution: The will must be executed without fraud, duress, undue influence, or mistake.
- Proper Execution: The will must be signed by the testator in the presence of at least two witnesses who are present at the same time and who understand that the document is the testator's will.
Intestacy: The "Default" Method if You Die Without a Will
If someone dies without a will in California, they are considered to have died "intestate." In such cases, the state's intestacy laws will determine how the decedent's property is distributed. There are two key reasons to create a will rather than relying on intestacy laws:
Family Control
Intestacy laws prioritize distributing property to immediate family members, such as children, parents, and siblings. However, these laws may not reflect your personal wishes, especially if you have estranged relationships or want to leave assets to non-family members. Without a will, property could pass to relatives you would not have chosen, or even result in custody of a minor child going to someone you would not have selected as a guardian.
Probate
Both wills and intestate estates must go through probate, but a well-drafted will can streamline the process, making it quicker and less contentious. While probate can be costly and time-consuming, a clearly defined will reduces the likelihood of disputes and challenges, ensuring your estate is distributed as intended.
Additionally, there are other estate planning tools available that can help you distribute your property according to your wishes while avoiding probate altogether. An estate planning attorney can help you determine the best strategy for your specific circumstances.
The Risks of “Do-It-Yourself” Wills in California
The perceived expense of hiring a lawyer to draft a will, combined with the desire to avoid intestacy, has led to a rise in the use of “do-it-yourself” wills. These online forms claim to offer the same benefits as a traditional will prepared by an experienced attorney.
However, these generic documents often fail to account for the unique aspects of your estate, leading to potential mistakes that could open the door to legal challenges. In some cases, a court may even invalidate the will entirely.
If you decide to try a DIY will, consider these five important tips:
- Clearly Define Family Members: Specify who is considered “family” in your will, especially if you have children from previous marriages or complex family dynamics.
- Appoint an Executor: Clearly assign an executor to handle your debts, expenses, and estate administration.
- Make Specific Bequests: Detail specific gifts or bequests to avoid confusion about who receives what.
- Include a Catch-All Clause: Ensure you have a residuary clause that covers any assets not specifically mentioned in your will.
- Be Specific: Clearly identify people and property to minimize ambiguity and reduce the risk of disputes.
While these tips can help, it is always advisable to have an attorney review your will to ensure it complies with California law and accurately reflects your intentions.
Contact an Attorney for Wills in California
If you are considering making a last will and testament, make sure that you comply with the law and provide very specific instructions in the will. At Bay Legal, PC, our estate planning attorney helps clients in California create strong Wills that comply with state laws so you don't have to worry about it. We know how hard you worked for your assets and understand why it is so important to distribute your assets in the way you see fit to do it. Contact us by filling out the online form or calling us directly at 650-374-7900 to schedule a Consultation.