California Wills: Who Needs One and What Are Your Options?
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UPDATED: Jan 10, 2020
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A will is a legal document that expresses the desires of the author, or testator, with regard to the disposition of property after his or her death. But who needs a will and what are your options if you do?
Who needs a will?
In a recent interview, Vincent J. Russo, a California attorney whose practice consists of estate planning and probate litigation, explained to us who needs a will. Here’s what he said:
I would say anybody who has property that they want to transfer would need a will because that’s really the only way that the beneficiary has a legal right to make a claim to that property. That’s assuming that they are not the natural objects of the bounty, meaning that if the person died intestate, without a will, then that property would go to them. An example would be an only child of a person who is not married; if there wasn’t a will, the property would automatically go to that person.
However, if there are multiple family members, or somebody else that you want to have the property and/or to follow through with your final instructions as to where you want to be buried or a variety of other things that you may want done, then I would indicate that those parties would be appropriate candidates for a will. Another candidate would be someone that has a child with a disability and wants to make sure that child is adequately taken care of. Those are the primary reason people set up wills and proper estate plans.
What options are available in California?
Generally speaking, there are two types of wills in California – a witnessed will and a holographic will. Russo defined these for us and explained how they work:
- Witnessed wills: The first type is a witnessed will in which you need two disinterested witnesses, meaning that they will not receive any of the property of which is being disposed. These witnesses must sign simultaneously at the time of the execution of the testator. They all need to be in the room, the person that is signing the will needs to know and acknowledge that this is my last will and testament and that those two disinterested witnesses need to concurrently sign, or sign at the same time basically, as the person who is making the will.
- Holographic wills: The second type is a holographic will. Most people think of a holographic will as using videotapes and things like that, but the actual definition of a holographic will is a little bit different. A holographic will means that the material terms of the will need to be in the testator’s own handwriting and it needs to be signed by the testator. It’s important that the material terms are in the testator’s handwriting.
I can write out that this is my last will and testament and that I intend for this document to act as a holographic will, list whatever the material terms of that will are and then sign it. A date is not necessary, although it comes in handy, especially if there are multiple documents popping up. I would advise people to include a date, though.
Estate planning, which includes wills, trusts, health care directives and probate issues, is a complicated area of the law. If you would like to speak with an experienced California wills lawyer about your situation, please click here.