Updated: Mar 29
"How to write a will" is one of the most frequently searched phrases on Google right now. This is not terribly surprising given the world-wide crisis in which we find ourselves, fighting against COVID-19. Many have died and are dying from this relentless virus, and depending on which news channel you tune into, things will get worse before they get better. People are planning for worst-case scenarios, and a will is an important part of such a plan.
There are a variety of ways to go about drafting a valid will in California, and I'm going to explain three of them that I have categorized as Not-So-Good, Better and Best.
Not-So-Good: The Holographic Will
Did you know that in California you can write a will from your kitchen table, on a napkin even, and have it potentially deemed valid under the law? This is called a holographic will. Its only requirements under the Probate Code are that 1) the will's "material provisions" are in the testator's handwriting (not typed), and 2) it is signed by the testator. But before you put pen to napkin, let us consider the drawbacks of a holographic will because they are significant.
This type of will is very easy to contest, since it is created with no oversight, such as witnesses or a notary. It leaves the door wide open for a family to claim that the testator lacked capacity to create the will, or that it should be invalidated for otherwise not representing the testator's last wishes.
Even if no one contests a holographic will, it must be filed with a court and administered through a process called "probate." Probate is long and expensive, and most people prefer to stay out of court whenever possible.
Better: Statutory Will or Other Template-Based Will
There are plenty of templates for wills available online. In fact, the California Bar Association provides its own form created from the California Probate Code. (See the following link: https://www.calbar.ca.gov/Portals/0/documents/publications/Will-Form.pdf ) These forms must be filled out by the testator and then signed in front of two witnesses. They contain statements as to the testator's capacity and intent, and they take a lot of the guesswork out of drafting your own will.
Although it is difficult to deny the ease and low cost of going this route, template-based wills are not without drawbacks. A template cannot be tailored to a testator's particular needs. It is a one-size-fits-all document that will never be perfect for everyone. In fact, it will rarely be perfect for anyone.
Additionally, these wills do nothing to keep family members out of court. The will's executor must, once again, file the will in probate court and then expend both time and money working under the oversight of a judge.
Best: A Professionally-Drafted Will
You probably saw this coming. But stick with me to better understand everything that comes from hiring an estate planning attorney to draft your will. For most attorneys, a will is only a part of a comprehensive estate plan aimed at protecting your family before, during, and after a crisis.
Consider the period before your will ever comes into play, when you may be sick or otherwise unable to care for yourself. Who will pay your bills? Interact with your bank? Speak with your doctors and make decisions on your behalf? An attorney will draft documents, including a Durable Power of Attorney and an Advance Health Care Directive, to give decision-making authority to the people you trust.
In designing your will, an attorney will consider your assets, your family dynamics, and your priorities to determine how best to pass on your estate without landing your family in a courtroom. If you own a home in California, this may involve a trust. Or perhaps most of your assets can be transferred outside of court using payable-on-death and beneficiary designations. An attorney will help you will these considerations and draft a comprehensive plan that avoids probate altogether.
Every person is unique. Every person's will should be unique to his or her circumstances. Please contact me today with questions about your will. I am currently meeting clients via Zoom in light of social-distancing. Signing meetings are conducted in-person until CA allows for remote notarization (which may not be far off).