It’s important to create your will whether times are simple or challenging. When you pass, the state of California will be able to decide who gets your property and raises your children if you do not have a will in place. At Santa Barbara Estate Planning and Elder Law, our team has the knowledge and experience you need to draft a will that will protect your assets and provide for your loved ones. Contact our our law team to get started today!

When you create your will with an attorney, you can make sure to provide for a number of items and individuals, including:

  • Designate a guardian for minor children
  • Manage property funding of the trust for your children
  • Appoint a trustee
  • Designate an executor
  • Provide for individuals who wouldn’t benefit otherwise — step-children, friends, etc.
  • And more

What Is Included In a Will

Your will is a written document that provides for the transfer of your assets upon your passing. Since your will is filed with the court upon your passing, it becomes publicly available. Typically, wills include several foundational items and processes:

  • Witnessed by two people
  • Appoints someone as executor
  • Lists your heirs
  • Apportions the assets among the heirs

If you wish to disinherit a relative — child or spouse — who would receive a portion of your estate according to the statutes of the state of California, you would do so in your will. Since there is no set length that a will must be in order to be legal, you can include as many specifications and items as are important to the distribution of your estate. In fact, you might be interested to discover that wills can be as short as one page or run up to 30 pages and longer.

Trusts and Trustees

It is fairly normal for wills to provide for trusts to be created upon the death of the person drafting the will. These are called testamentary trusts and are designed to appoint assets into the trust for a specific person or purpose. Typically, these trusts are created to provide for the care of minor children and apportion part of the estate to them. A trustee is designated by the creator of the will to manage the trust and is provided with directions as to how the funds should be invested and they should be dispersed.

How Wills Are Drafted

Should you choose, you can write your own will, as long as you are of sound mind and have testamentary intent, which means that you are fully aware of what you own, and intend for your property to be transferred to another at the time of your death. You can make alterations to your will as often as you wish, including up until the moment of death. Wills are rigorously enforced by probate courts, which function on the principle that each person is entitled to determine how their assets will be disbursed upon their death.

Protecting Your Will

Unfortunately, your will can be attacked by any interested party. This attack is referred to as a will contest. The most common attacks on wills focus on whether the deceased knew what he or she was doing (sound mind) and whether they were under improper pressure from a third party (undue influence). The good news is that, in spite of what books and movies might lead you to think, it is extremely difficult to overturn a will, as the party contesting the will has the burden of proof.

Holographic Wills

A holographic will is signed by the testator (you) and the provisions in the will also need to be in your handwriting. This type of will is acceptable in California if it meets these basic standards. See California Probate Code §6111(a).

A holographic will doesn’t need to be witnessed or dated, and you are allowed to sign the will anywhere on the document, as long as your signature is made with the intent to execute your will. In other words, the document must be clearly intended to be a will and not simply a set of instructions to your attorney regarding the drafting of a proposed witnessed will.

Any statement of testamentary intent contained in a holographic will may be part of a commercially printed form will. Testamentary intent means that you intend to bequeath or to appoint property through your will. See California Probate Code §6111(c).

It is advisable to write a holographic will entirely in your own handwriting. Doing this eliminates the possibility of a later dispute. See Estate of Sola (1990) 225 CA3d 241. In another case, Estate of Brenner (1999) 76 CA4th 1298, the court held that a will was valid as a holographic will even though most of the dispositive provisions were in the form of a photocopy of a document that was in the testator’s own handwriting.

Although a holographic will need not be dated, it is advisable to date it. If the holographic will is not dated and an inconsistent will exists, the courts will deem the holographic will invalid to the extent of the inconsistency, unless it is shown that the holographic will was executed after the other will. See California Probate Code §6111(b)(1).

Further, California Probate Code §6111(b)(2) provides that if the testator lacked testamentary capacity at any time when the holographic will might have been executed, the courts will consider the will invalid unless it is shown that the testator had capacity when the will was executed.

When it comes to drafting your will and providing for your loved ones upon your passing, you want to make sure that everything is legally accurate and secure. Contact the team at Santa Barbara Estate Planning & Elder Law today to get started.

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