Advanced FAQ's On Wills
People are always asking what types of things must be in a will. What they really to ask is:
Here are some of the basic requirements to make a will legal:
Do I Need To Notarize My Will?
There is no requirement that a will be notarized, recorded or filed anywhere. Actually, there is no place to file it anyway.
Yes. This is known as a "holographic will." It must be completely handwritten by the person making the will, and there are no witnesses needed when this is done.
However, holographic wills are often suspect as to authenticity, are poorly written and hard to understand. Phrases that may make sense to the person who wrote the holographic will, may be meaningless to the rest of the world, especially a probate court.
Holographic wills should be written only in emergency situations, and as soon as the emergency has ended, they should be replaced by a more formal typewritten will reviewed by an attorney.
Yes. But do not rely on that alone. A videotaped will is not admissible into probate and therefore cannot be used as a substitute for a fully executed and written will. The best thing that a videotape can be used for is evidence of the decedent’s competence or to show that he was not subject to undue influence or duress at the time he signed the will thus, possibly avoiding a potential will contest.
What Information Should I Start To Gather?
The first thing you should do is to make a list of your assets and the value of them. Be realistic about their values and do not forget to consider life insurance.
Assets include everything you own, whether they are tangible like your house and car, or intangible like stocks and life insurance.
The next thing you should do is create a list of beneficiaries, or people you want to give something to if you die tomorrow, and, to a lesser extent, people you want to make sure get nothing.
With these things in front of you, you should then consider who will carry out the transfer of your assets. This would be the person you appoint as executor or personal representative. This person will administer your estate and make the financial decisions for you after you are deceased. You should try to choose someone you trust to be fair and honest with the handling of your assets and, who is most likely to follow your intentions.
Anyone. They can be someone who is a beneficiary under the will or someone who has no interest in your estate at all. Remember that the executor will have control of the process. In some cases it may make more sense to pick someone who is not an heir under the will, so that he or she can be impartial during the probate process.
In line with choosing your executor, you will want to lay out his or her authority in the will or any requirements for acting as the executor.
Can I Only Give Percentages Of My Estate Or Can I Give Specific Gifts?
You can do both. If you have certain items that you want to go to a particular person, you can list it in your will. For example, you might have a set of great golf clubs that you want to give to your best friend, a house to your daughter or money to your favorite charity. Another way to give a specific gift is to forgive a debt owed to you. For instance, that $700.00 your cousin Fred owes to you can be your gift to him simply by saying in your will that you don’t want your estate to collect it.
The rest of your beneficiaries can be taken care of in what is called a "residuary clause" which is a catch-all section that names a person or people who will get what is left. The residuary clause can give 100 percent to one individual or break it up into percentages to several individuals or entities such as a charity.
Most wills do not make specific gifts, and if they do, they are a small part of the will, because the bulk of the assets are left to the heirs through a residuary clause.
Can Joint Tenancy Property Be Transferred By A Will?
No. Joint tenancy property transfer immediately and automatically upon death to the surviving joint tenant. For instance, on a real estate deed, the person or persons named as joint tenants will enjoy immediate ownership of the property once they file a death certificate with the County Recorder. Even if a will addresses the issue of joint tenancy property, the will has no effect on that particular item.
What About Property Held In A Living Trust?
Property held in a living trust is again not transferred by a will. That is why living trusts have become so popular, because they avoid probate or the need to take a will to probate. Presumably, everything will pass under the living trust and probate of the will would not be necessary. Although living trusts are more expensive to set up, they save a tremendous amount of money in the long run. Please see our website at www.trust4u.com for more information on living trusts.
When Is It Necessary To Update Or Change A Will?
A will is a much more temporary document than most people think. As you go through life, your circumstances change often, and what you own--and how much you own--changes.
Therefore, a will is not designed to be a permanent fixture in your special document drawer. It is designed to handle the here and now, and it is made to be modified. Times that you should consider changing your will are after having a baby, getting married, getting divorced, the death of a close family member, buying a major asset like a house, or just changing your mind.
Despite the temporariness of a will, you should not be dissuaded from doing one because you never know when you will need it. If you put off doing your will because you think circumstances will change, you run the tremendous risk of not having a will in place at the time of your death. For more information on changing your will please see our "Faq’s About Wills" page at this website.
How Can You Disinherit Someone?
A person can be disinherited simply by mentioning their name and saying that you leave them nothing. Many times, people will leave the sum of $1.00 to a person that they wanted to disinherit. The reason for this is to show that they did think about the person (and that they didn’t forget them) but felt that they should be shafted by receiving only $1.00.
You can explain your reasoning if you disinherit someone, if you want, or just say nothing more than the fact that they are getting only $1.00 or nothing at all.
This is especially true in the case of people in your immediate family. California State Law makes an assumption that if the child of a decedent is not mentioned in his or her will, it is a mistake and that child is entitled to take a share of the estate anyway. This law was enacted to protect children born after the will was made, but has the effect as described above. This also applies to spouses as well as children.
How Can I Prevent Will Contests?
A will contest is a challenge by a beneficiary or person left out of a will to the distribution that is contained in the will. Most will contests come from dissatisfied close relatives or people who were promised something by the person making the will who found out they didn’t get what they expected.
How Does A "No Contest" Clause Work?
A no contest clause is a provision in a will that penalizes a beneficiary who makes a challenge. The intention of this typw of clause is to scare away would be challengers by putting them at risk of losing everything that they get in the will if their challenge is unsuccessful. This often makes people think before acting on a challenge.
You should note that this does not guarantee that there will be no will contests, but it makes the beneficiary considering such litigation think twice before bringing a challenge, especially if they have a fair amount to lose.
Therefore, for a no contest clause to work, it has to be applied against a person who gets something of enough value to make it too risky to challenge. If the person has nothing to lose in the will, the only cost to the challenger will be legal fees, time, and aggravation of the litigation process, the same as in any other lawsuit.
Unlike other lawsuits however, the challenge is presented against a pot of money that no living person yet owns. The decedent is dead and the other beneficiaries don’t have it in their hot little hands. Therefore, deals can be made which is what many challengers depend on in order to get something from nothing in the will. The best solution to this is to make sure that a potential challenger has something to lose.
For further questions about this topic or your Will or Trust, contact:
THE LAW OFFICES OF
JAY A. ROSE
20335 Ventura Bou8levard, Suite 410
Woodland Hills, California 9136-24444
818-932-0200
888-99Wills
email:
attyrose@99wills.com