Torrance Wills Lawyer
Creating a will is the most basic form of estate planning. In fact, it is the only form of estate planning many people do. In some cases, a last will and testament can be an adequate means of distributing an estate, though for many Los Angeles area families, their heirs would be better served with the use of more than just a will. The Torrance wills lawyer at Samuel Ford Law can help you plan your estate and determine what legal instruments would best help you provide for your heirs after you go. Contact our South Bay estate planning office today for a free consultation.
What goes in a last will and testament?
A last will and testament is, primarily, a way to allocate your property to the persons and causes you love. A will can also designate guardians for your children should you die while your children are minors, as well as an executor, which is the person who oversees the probate of the will. A will can be as simple as a handwritten note on a cocktail napkin, but a will bears the greatest chances of withstanding legal challenges when drafted by a skilled California estate planning attorney.
Requirements for a valid will
Who can create a will: Under California law, anyone over age 18 (or an emancipated minor) can draft a will so long as they are of sound mind, also known as having “testamentary capacity.” This means that the testator (the person drafting a will) understands what writing a will means, knows what assets or property they have, knows who their heirs and relatives are (even if they end up leaving them out of the will), and doesn’t have a mental illness or disease that causes delusions or hallucinations which could affect how they allocate their property. These sound like easy standards to meet, and for the most part, they are, so long as severe dementia, Alzheimer’s, or other mental illnesses are not present. An example of an absence of testamentary capacity might look like an elderly testator leaving all of his possessions to a televangelist after forgetting that he had living children and grandchildren.
What a will must include: California probate courts will deem a last will and testament invalid if it does not possess the following attributes:
- The will is in writing
- The will is signed and dated by the testator, or signed by someone else as directed by the testator and while in the testator’s presence, and,
- The testator’s signature is witnessed by at least two disinterested witnesses (i.e., they aren’t included as beneficiaries in the will), and those witnesses also sign the will.
Again, these requirements appear simple, but errors in completing these steps can lead to invalidation of a will, requiring that the testator’s assets pass according to California’s intestacy laws, which are laws automatically allocating property to the deceased person’s heirs in set percentages. Contact Samuel Ford Law if you have questions about drafting a will.
What a will can’t do
Wills can allocate property to certain recipients, but they have serious limitations when compared to other tools in the estate planning toolbox, such as the use of trusts or designation of joint owners with the right of survivorship. Wills cannot:
- Place terms on gifts in the same way a trust can, such as when and how beneficiaries receive their share of the trust, nor provide for ongoing management of those assets through the work of a trustee.
- Delineate your wishes regarding end-of-life medical care.
- Designate someone you trust to act as medical or financial power of attorney if you are incapacitated.
- Prevent assets from going through probate—unlike assets placed in trust, any asset listed in a will does not pass to its intended recipient until after the will has gone through probate.
When will a court invalidate a will?
In very narrow circumstances, a California court has the power to invalidate a will. Only persons with standing have the right to contest a will. In the case of a will contest, individuals have standing if they would have stood to receive an inheritance from a prior version of that will, or if they are not included in the current will and would be considered an heir, such as a child or spouse of the deceased person. A court can invalidate a will for the following reasons:
- Undue influence
- Lack of testamentary capacity or intent
Trustworthy estate planning guidance in Torrance
Rather than rely on a form you find online to convey your final financial gifts to your loved ones, create an estate plan with the help of a trusted advisor who knows the law and can guide you through your best options. Contact the knowledgeable and experienced Torrance estate planning law firm Samuel Ford Law for a free consultation on your estate planning needs.