Creating a will is the easiest way to ensure your assets are appropriately distributed to your loved ones. Residents of California are allowed to write their wills, but regulations apply before a court can consider this a valid, legally binding document. The legal team at Weiner Law can help you explore options if you want to safeguard your legacy.
There are two prominent methods for creating a will: statutory wills and holographic wills. Below, our legal experts discuss how each method has different requirements and uses. We also cover the basic steps to create a will so that you can make well-informed decisions about your estate planning process in California.
Why You Should Create a Will
The primary benefit of a will is protecting your property and providing for your family if something should happen to you. The will provides clear instructions on how to distribute assets, who should care for your underaged children, and many other aspects of life that are important to you. Without this document, the state will need to decide on the fate of your assets and children’s guardianship arrangements.
A will allows you to appoint an executor for your estate as someone who carries out your wishes. As the writer of a will, you will want to appoint a trustworthy and responsible executor to handle matters concerning your estate. These duties may include distributing assets, paying bills or taxes, taking care of the property, and handling probate court proceedings.
If you feel that you need legal advice to create your will and choose your executor, the attorneys at Weiner Law can assist you at the law office in California. It is the right choice for honest, unbiased counsel that will help you make the right decisions regarding your legacy.
What is Probate Court?
It is very likely your family and loved ones will have to endure probate court proceedings before they can inherit your property and assets in full. Probate court is necessary to ensure that a will is valid and being followed properly, but it does not need to be a stressful process with the right support. Weiner Law is happy to provide counsel if your will goes to court and your family needs legal assistance after you are gone.
The probate process ensures that assets transfer to the designated beneficiaries and that the estate pays its creditors. If someone challenges the validity of a will, the probate court exists to settle this matter and distribute your property. Here’s how the probate process typically works in California:
- Probate commences when someone files a petition for probate, usually a relative or someone appointed to the role by the will.
- The court confirms the executor who will handle several tasks, such as opening bank accounts, sending notices to beneficiaries, filing court documents, and transferring assets.
- As probate court proceedings move forward, it may take months or years to complete. Every estate is different, and it can be costly if the case is complex.
- If the deceased’s will and estate are well-planned and clearly expressed in a written, legally binding document, probate court runs smoothly. You might even be able to help your loved ones avoid probate with a living or revocable trust.
If you are facing the prospect of probate court, why not contact the attorneys at Weiner Law for more advice? Their expertise can make the process as smooth as possible.
How to Avoid Probate Court
If one wishes to spare a loved one from the tedious process of probate court, creating a revocable trust is a viable option in California. Any individual can create a revocable trust, appointing themselves as the Trustee of their own estate and retaining the property in the trust until their death or incapacity. Thereafter, the successor Trustee will handle all the assets and administration within the trust on behalf of your beneficiaries.
A trust creator can amend, cancel, or revoke their own revocable trust at any point that they are still capable of doing so. Typically, the revocable trust maker, Trustee, and beneficiaries are the same person. If the trust creator assigns beneficiaries to inherit their estate, assets transfer, and the trustee is no longer the legal owner of the property (that’s why there is no need to rely on a probate court to transfer assets upon the trust creator’s passing).
Probate court could still be necessary if the trust maker neglects to assign a certain assets to the official trust, but a “pour-over” clause in the will serves as a solution in congruence with a revocable trust. The legal document ensures that the remaining assets automatically transfer to the preexisting trust. Call the Weiner Law team if you would like to know more about this popular option in California.
Writing a Will for Effective Estate Planning in California
There are two ways to write a will and a few basic steps to create a document that stands up in probate court.
Statutory Wills vs. Holographic Wills
California’s residents have choices to make when creating a will, including the option to use the state government’s forms. However, you can also choose to write the will yourself.
The California legislature created a statutory will using a standardized form for you to fill in the blanks, date, and sign. It requires two witnesses who will observe the document’s creation and sign themselves. While these wills seem simpler at face value, the strict format can limit estate planning considerably.
Not all states accept the validity of these documents, and the will might still require legal guidance where complexities exist.
If there are no witnesses or notaries available or wanted, California residents also have the option to create a holographic will. The creator must handwrite this document—typed and illegible sections are invalid. The writer of the will must also sign and date each page.
A holographic will is liberating, allowing the creator to include more complicated details and cover a larger scope for their estate planning wishes. Find out more from the Weiner Law professionals or keep reading for the basic steps to create a will in California.
Basic Steps to Create a Will
Any California resident over the age of 18 may create a legally binding will. The writer must use precise legal language so that there are no misinterpretations, which is why Weiner Law attorneys highly recommend seeking legal counsel when creating a will.
Here are five basic steps for drafting a will that will stand up in a court of law:
#1 Identify Beneficiaries
First, make a list of all property that you own, including houses, bank accounts, stock portfolios, cars, art, jewelry, and other valuable possessions. Determine the beneficiaries (people or institutions) that will inherit these possessions and be as specific as you want when assigning sums of money or other items to these beneficiaries.
TIP: Include identifying information about each beneficiary to avoid any disputes, like an address, phone number, birth date, and so on.
#2 Stipulate Guardians
When parents die prematurely, there has to be a process in place to assign guardians to their surviving children. If you are a parent of minor children, this is a critical step. The guardian you indicate in your will might be the person to raise your children and manage their assets until they reach the legal age of maturity.
#3 Assign an Executor
The executor oversees your will to follow your wishes as closely as possible. This person will also handle probate court proceedings alongside a legal team like Weiner Law.
#4 Identify Other Assets
A will cannot include some assets in its general distribution instructions, including joint assets, life insurance policies, and retirement accounts. You will need to assign these assets to the correct beneficiaries in writing.
#5 Sign, Date, and Store
A holographic will is only valid if you sign and date each page. A statutory will also requires two witnesses in California to sign and date the document before it can be legally binding. Estate planning also requires that you store your will in a safe place, preferably somewhere that is fireproof and waterproof.
TIP: Inform at least one other person of your will’s whereabouts so that they know where to access it when the time comes.
If you wish to revoke your will in California, you should burn or tear the document. It should be destroyed by the original writer before the court will recognize its cancellation. You can also cancel an old document by creating a new will and explicitly contradicting the previous one.
Choose Weiner Law to Safeguard Your Legacy
The attorneys at Weiner Law can help you create a robust estate planning strategy that will ensure your legacy thrives when you’re gone. Broaching the topic of creating a will can be uncomfortable, but it is necessary if you want to ensure that the fruits of your life’s labor go to the right people. A will is especially crucial in determining who will take care of your children and handle their assets until they are old enough to do so themselves.
At Weiner Law, our attorneys have years of experience creating wills, establishing trusts, and handling estate planning. We offer complimentary, no-obligation consultations to assist you in preparing for the future under California’s laws. Contact us today to schedule a consultation with someone from our experienced and trusted legal team.