Do it Yourself Wills
Do-it-yourself wills are very risky. However, the state of California has a free will form. This will requires two witnesses and is limited in its scope, but can be useful in many situations. (If you are going to use a form will or trust, consider reading the relevant sections of the California Probate Code, which is the official source of information about the requirements for a valid estate plan.)
San Francisco Attorneys, Offering Advice on Writing Your Own Will
One type of do-it-yourself will is the holographic will, which must be in the testator’s handwriting (in other words, not typewritten or printed). The testator must sign it, but unlike other types of wills, no witnesses are required. A holographic will also should be dated, although the Probate Code does not mandate this. Courts have been lenient in trying to interpret holographic wills when questions arise, but judges will not rewrite a holographic will to make it valid.
You should also consider the possibility that one or more of the persons mentioned in your will might not survive you. Each bequest either should have an alternative recipient, such as the original heir’s children, or the bequest should “lapse” if the heir does not survive you. All heirs should be adequately identified by name and/or by relationship to the testator, and charities and other institutions should be described by their full name and address.
The executor of the will is the person who will manage your estate after you have passed away. Generally the person or persons nominated as executor will be appointed as executor by the court, but if you do not propose an executor in your will, the court will rely on state law to make the choice (Probate Code Section 8461).
In California two witnesses are needed for a will that is not a holographic will. The Probate Code provides that the witnesses must watch the testator sign the will and then each witness must sign a statement in the will saying that the witnesses saw the testator sign the will. The witnesses also must understand that the document is the testator’s will. The witnesses should not be related to the testator nor should they be beneficiaries of the estate.
The notarization counts as only one witness, and the will needs two witnesses. The California Secretary of State’s office advises notaries not to notarize wills unless an attorney advises it.
If the testator’s children are under 18, the will should also nominate a guardian or guardians for them.
The estate plan should also have some provision to retain bequests for children in a trust until they reach a specified age. The age when the trust is distributed to the child can be as young as 18, but many parents prefer that their children receive their inheritances when they are older to ensure that funds will be available for their college education. The trust should specify whether the child will receive the income from the trust, or whether it will be retained in the trust, and how the trustee can spend the principal on behalf of the child.
Lawyers Serving the Bay Area and Southern California, Answering Questions About Holographic Wills
To discuss what is important to include when writing your own will, please call 415-441-8669 or contact our San Francisco lawyers online via e-mail to schedule a free initial consultation. We are happy to schedule appointments at your convenience.