Encinitas,
San Diego County
Practice Areas - Wills

What is a Will? 

A Will, sometimes referred to as a Last Will and Testament, is an instrument used to designate an Executor to your Estate's Assets and bequest (give) or make bequests of those Assets to your Beneficiaries.  In many cases a Will provides the Probate Court with instructions as to who should receive Title to the assets in your Estate.  The main types of Wills are: Holographic Wills,  which must be drafted in the Testator’s (creator’s) handwriting and signed, and typed or printed Wills which require the signatures of two disinterested witnesses in addition to the Testator’s.

 

Can a person make their own Will? 

Yes.  There are no laws that prohibit a person from making their own Will so long as they are competent adults.  However, there are rules laid out in the Probate Code that require Wills to be executed with specific formalities in order to be valid.  If these formalities are not followed the Will may be found invalid and the rules of Intestacy may be followed instead of the intent expressed in the improperly executed Will.  Dying Intestate, or Intestacy, is the term usually reserved for Estates with no Will in their Estate Plan.  With Intestacy, the Probate Code has already designated who will receive your assets if you fail to create a valid Will or fail to properly execute your Will. 

 

Does a Will become a Public Record? 

If your will is filed with the Probate Court, which it must be in order to Probate your Estate, it will become a public record.

 

If a person has a Will, do they avoid Probate? 

With a Traditional or Holographic Will, Probate will not be avoided.  However, a Pour Over Will may be used as a component of an Estate Plan designed in part to avoid Probate.  The Probate Code has an exception that exempts Estates of $100,000 or less from having to go through a formal Probate.  If the principal assets of a person’s Estate have already been transferred into their Trust, a Pour Over Will may be utilized to gather the remaining assets that have not been put into trust (so long as their total does not exceed $100,000).


Is there a Will Amendment procedure? 

A Will Amendment, more appropriately referred to as a Codicil, is available for the Will's creator so long as they have capacity.  

 

Does a person need a Will if they have a Trust? 

A Will is still a valuable tool in an Estate Plan.  As discussed above, if used in conjunction with a Trust, a Pour Over Will can pour over assets not yet transferred to your Trust and avoid Probate if the total value of the Assets does not exceed $100,000.  A Will can also be useful to designate Guardians if you have minor children.

 
Click on the following links to learn more about Trusts,
Health Care Directives, Powers of Attorney, Trust Administrations or Probate.  Please review the Disclaimer regarding the content provided on DonnoeLaw.com.   


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