THE ATTORNEY'S CORNER: WHAT TYPES OF WILLS ARE AVAILABLE?

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By Stephen C. Ross, Esq.

June 18, 2013 (San Diego County) – There are several types of wills available in California. It is important you choose the type best suited to your needs and make sure you comply with all the drafting requirements for the will type chosen. An improperly drafted will may not be admitted to probate, may result in a will contest and may result in your assets not being distributed pursuant to your wishes. This article discusses the various will types.

1. Witnessed Will. A witnessed will is the type typically prepared by an attorney. A valid witnessed will must be in writing and signed by: (a) the testator; (b) in the testator’s name by another person at the direction, and in the presence, of the testator; or, (c) by a conservator pursuant to a court’s order to make a will.

A testator who “cannot write” may sign the will by making his or her mark as-long-as his or her name is written near the mark by a person who writes his or her own name as a witness. “Cannot write” means the person is illiterate or physically unable to write.

A witnessed will must be witnessed by at least two people who are present at the same time and witness either the testator signing the will or the testator’s acknowledgment of his or her signature on the will. The witnesses must also understand the document being signed is the testator’s will.

Any generally competent person may act as a will witness. However, it is a good idea to use witnesses who are at least 18. A witnessed will is typically the best choice for most people needing a will.

2. Holographic Will. This type of will is handwritten. It is often used when the testator is not able to contact an attorney in time to prepare a witnessed will. For example, when the testator is scheduled for emergency surgery the next day.

The material provisions of a holographic will should be in the testator’s own handwriting and the document must be signed by the testator. The signature may appear anywhere on the will as-long-as it was made with the intent to authenticate the will. It must be clear the document is intended to be a will.

A holographic will does not need to be witnessed or dated. However, it is a good idea to date the will to avoid problems should an inconsistent will exist or the testator is determined to lack testamentary capacity in the future.

Because only the signature and material provisions must be in the testator’s handwriting, a holographic will may be valid even if immaterial provisions are printed, typed or written by another person. Although such immaterial provisions may not invalidate the will, they should be avoided whenever possible.

3. Pourover Will. A pourover will is typically a witnessed will that generally transfers all, or most, of decedent’s nontrust assets to a revocable trust. The primary functions of a pourover will are: (a) minimize the risk of disputes over the status and sufficiency of assets transferred during life; (b) simplify post death collection of property not transferred to the trust; and, (c) assure the estate will be properly distributed even if there was a complete failure to fund the trust during life.

A pourover will should be included in an estate plan where a revocable trust is the primary estate planning tool.

4. Statutory Will. A California statutory will is a form will set out in California Probate Code Section 6240. It may be executed by any person of sound mind over the age of 18 and must be witnessed by at least two persons. The witnesses must observe the testator’s signing.

A statutory will is a simple will and does not meet the needs of all people. It is not designed to reduce death taxes or other taxes. This form should probably not be used if any of the following applies to you: (a) your assets will be worth more than the current federal estate tax exclusion amount at the time of your death; (b) you own business-related assets; (c) you want to create a trust fund for your children’s education or other purpose; (d) you own assets in another state; (e) you want to disinherit certain people; or, (f) you have a valuable interest in a pension or profit- sharing plan.

5. Uniform International Will. The Uniform International Wills Act provides for the creation of an international will.  This will type may be useful for people who own property in another country or who plan to move to another country.

An international will must be in a writing prepared by the testator or another person either by hand or other means. It can be written in any language. The testator must declare in the presence of an authorized person and two witnesses the document is his or her will and he or she knows its contents. The testator must either sign or acknowledge his or her signature in the presence of the authorized person and two witnesses. If the testator is unable to sign, the will may still be valid if the testator indicates why he or she can’t sign and the authorized person makes note of the reason on the will. The testator may then direct any other person to sign his or her name if the authorized person makes note of this on the will. However, it is not required that any person sign the testator’s name for the testator. The witnesses and authorized person must sign the will in the testator’s presence.

An “authorized person” for purposes of executing an international will includes active California lawyers and certain members of the diplomatic and consular service of the United States.

Stephen represents estate planning, trust, will, probate, trust administration, business formation, stepparent adoption and family law matters. He conducts estate planning and probate seminars throughout San Diego County. For more information or to schedule a seminar contact Stephen at (619) 795-8524, stephen@stephenrosslaw.com or visit www.stephenrosslaw.com.

Disclaimer: Information contained in this article is believed to be accurate. However, you should seek professional legal advice before relying on the information.