What’s a Will and What Does It Do?

A last will and testament is an instrument that controls how your estate is to be probated after your death.  

1) Your estate is everything you own that is titled solely in your name at your death.

2) Probate is a Court process to administer estates.  

A will only controls your estate and an individual can easily avoid probate by not titling assets solely in one’s name.  For example, joint bank accounts, retirement plans or insurance policies with beneficiary designations, residences transferred to a trust are not controlled by your will and do not go through probate.  Moreover, the titling of the asset overrides anything that may be said in a will.    

Most people associate negatively with Probate so why would anyone want to go through it?

The main reason is that people don’t want probate but they simply do not know what happens to their assets when they die.  Tragically, many individuals fail to properly plan and their families are forced to scramble and go through what can be a very complicated process at a difficult time.    

But other individuals do consciously determine to have substantial estate assets be distributed through probate because it is public and the Court provide oversight services.  These individuals are often wealthy who can afford the time and expense of the process.  

There are also simplified probate procedures for small estates and also to confirm a spouse right to community property.  

Under California law, any person over the age of 18 and with “testamentary capacity” (of sound mind) can draft their own will.  The California Probate Code (the law for estates) makes only a few requirements for a valid will.

• The will must be signed by the testator (person who the will belongs to) OR in his or her name by another under the testator’s direction and also in the testator’s presence, OR by a conservator with a court order;
• The signing of the will (or the acknowledgement of the signing by the testator) must be witnessed and signed by at least two people at the same time. These two people must also understand that they are signing the will of the testator.

Note: A will may still be valid if these three things are not done, but this becomes more complicated and requires “clear and convincing evidence” to be presented before the court. (CA Probate code 6111).