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The Most Recognizable Estate Planning Tool – the Will

September 19, 2011

Creating a will is usually the first thing that comes to mind when clients consider estate planning. A will can be an inexpensive and simple way for a person to plan for events after his or her death. However, the legal requirements for creating
a valid will in California can be complicated.

What is a Will?

A will is a legal document that gives specific instructions to be carried out upon a person’s death. The person who makes the will is called the “testator” and the person appointed to carry out the intentions of the testator is called the “executor.”

What types of Wills are there?

In Californiathere are basically three types of wills. A “holographic will” is handwritten by the testator. Although California recognizes holographic wills, they must meet specific legal requirements to be valid.

A statutory will is a “fill in the blank” form in which the testator inserts his or her personal information
and testamentary instructions. A statutory will can be found on the California
State Bar website.

The third type is a will drafted for the testator by an attorney.

What is a Will used for?

A will commonly names an executor and designates beneficiaries – those individuals or charities that
will receive the testator’s estate at the testator’s death. A will can also be used to create a trust, known
as a testamentary trust, and to appoint a guardian for the testator’s children. And, as seen in the movies, a will can also
be used to disinherit a person who would otherwise inherit from the testator, so that the person receives nothing.

What are some of the things that a Will cannot be used for?

A will does not cover certain assets like life insurance, retirement plans, 401(k)s, or IRAs. A will does not affect transfer on death or payable on death accounts. A spouse’s community property is not affected by a will, nor is a spouse’s separate
property. A will also does not affect assets that belong to a living trust.

Can a Will be challenged after the testator dies?

Yes. A will can be contested in court after the testator’s death. Anyone with legal standing — typically a spouse, child, or former beneficiary — has legal standing to file a contest. Although wills can contain a clause that disinherits anyone who contests a will (called a “no-contest” clause), these clauses are only effective as to certain types of contests and are often inadequate to deter a contest.

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