Wills

What are the minimum provisions an effective will contains?

An affective will must: 1. dispose of the estate, 2. appoint an executor, and 3. be provable as a will or qualify as a will for being proved up in probate.

At what age do I need to write my will?

Once a person begins to accumulate property, accumulate family and friends, and perhaps begin to sense how he or she would like the estate to pass, that is the time to do a will. Anyone who is faced with a life threatening disease or is about to leave to go over to a theatre of war, even if that person does not have much, should write a will.

What happens to my possessions if I die without a will?

Under California law and I assume under the laws of all other jurisdictions, where a will does not dispose of a person's property, the statute of intestency will direct where that property passes. If, for example, you are unmarrried and one or more of your parents is alive, the disposition of your estate would be to your parents as your heirs of law. If your parents are deceased and you are unmarried, then to your brothers and sisters. If you are married, to your wife or husband. If you are divorced or widowed and have children, to your children.

What is a "beneficiary"?

A beneficiary is, by definition, a person who benefits from your estate upon your death. The benefit can derive from gifts under a will, or a designation as a beneficiary under pension plan, an IRA or an insurance policy.

Can I exclude someone from my estate?

Under California law you can exclude whomever you want from your estate plan. In some states, a surviving spouse has a statutory right to an interest in a deceased married person's estate. This is not the case in California. A married person is entitled to dispose of his or her entire separate property estate, and his or her one half community interest in the estate. Children have no statutory rights, and brothers and sisters have no statutory rights. Excluding anyone you wish is part of the estate planning process.

What do parents of minor children need to consider when drafting a will?

Parents of minor children will be concerned about two things when drafting what will probably be their first estate plan. The first is who will bring the children up if they die together. Who, in other words, would be their guardians until age 18 if they are preceding without a trust for their benefit. The second is how are they going to support those children until they do reach age 18 or get through college or whatever it is the parents wish for their children. Therefore the first issue has to be addressed in the content of the will. It's in the will that a couple will name the people they want to serve as guardians. The issue of the resources to support children when the estate is still modest will be addressed by the purchase of insurance policies that would go into effect at after the second of them died

How often does a will need to be updated?

I have heard the question of how often a will should be updated on a number of occasions and at the risk of being facetious I think that a will needs to be updated when the client thinks the will needs to be updated. How often a will should be updated is certainly not something a lawyer can determine. A client's change of financial situation, marital condition, family relationship, all will compel the client to conclude that he or she has to revisit an already existing estate plan, or change their will.

Does a will have to be prepared by an attorney for it to be considered legal?

No. A will can be prepared by an individual using his own hand; it can be prepared by a friend who is not an attorney; there is no magic to a will's being prepared by a lawyer. The magic of will preparation by the lawyer is that if the lawyer knows what he or she is doing, the will is likely to be more effective.

Do I need to sign my will in front of witnesses?

If the will is what is called an "attorney-prepared typewritten will," California law requires that the execution of the will be witnessed by two disinterested individuals, all being present at the same time. If the will is a holographic will, the will simply has to be handwritten by the individual testator. A convenience for the testator could be a headache for someone later on trying to prove the will.

What are the most common reasons wills are challenged?

The most common mistake a person makes in writing a will is probably when the person writes the will himself or herself. What a person who is preparing his or her own will often forgets is that some of the estate that he or she has is not subject to the will, and therefore it passes outright; not subject to creditors' claims, not subject to the payment of estate tax and the like.Other mistakes are certainly less fundamental, but failure to name a qualified executor would certainly rank among those that make a will deficient.

What is an example of a mistake made while writing a will?

A very good example is one that occured about 15 years ago, which I was aware. An individual who did not want to pay a lawyer to prepare a will prepared it himself. He was a doctor and felt he was sophisticated enough, and his will basically gave his house to his live-in partner. The problem is that the house represented only a third of his entire estate. The balance of the estate was in certificates of deposit where he had named brothers and sisters as the beneficiaries. The only estate asset was the house, when he died the house had to be sold in order to pay the estate taxes on the entire estate, which frustrated the testator's intent.