Some people think that what they need is a “Simple Will”. Actually what they need is the “Right Will”. What is the “Right Will” depends on a variety of factors including the size of the estate, the simplicity or the complexity of the gifting scheme, contingency planning if beneficiaries die, whether a Probate will be required, whether a Living Trust is involved, the type of assets to pass under the Will, the capacity of the Testator (i.e., person signing the will) both to understand and to sign the Will, and whether the Will is likely to be disputed.
When no Probate is required a “Simple Will” is more likely to be sufficient. Also, if the testator has diminished capacity to understand what their will says then a Simple Will may also be more appropriate. A California Statutory Will, a short Formal Will, or a handwritten Holographic Will can all be Simple Wills.
A California Statutory Will is a free form available on-line. The Testator has a series of choices and decisions to make. He or she fills in the appropriate blanks in the form, initials each page and signs and dates the Will before two disinterested witnesses who also sign. It allows no deviations or elaborations from the form.
A short Formal Will is one prepared by an attorney. It is signed and dated by the testator and witnessed by two impartial witnesses. A short Formal Will can address issues beyond the limited scope of a California Statutory Will and is the only choice if the Testator is physically unable to sign the Will. A Testator who wants some contingency planning or who wants any conditions placed on gifts would not use a Statutory Will.
A Holographic Will requires that the major substantive terms be handwritten by the Testator who must declare his testamentary intention to make a Will. No witnesses are required. Someone without time to see an attorney who is travelling or going into surgery might use a Holographic Will as a temporary measure.
When is a Probate required? Probate estates appraised at or above $150,000 gross value require a court supervised Probate. An important exception applies to assets going to the Decedent’s Surviving Spouse. Assets passing to a Surviving Spouse do not require a Probate, no matter the value, and can be transferred using a Spousal Property Petition.
A Probate may still be required to transfer other assets of the decedent’s estate going to other beneficiaries. Transferring assets in a small estate with a gross value under $150,000 to non-spousal beneficiaries usually involves either Affidavits or a court Petition to Confirm Title to Real and Personal Property.
A Formal Will is far better equipped for Probate administration. Wills are more than just statements of testamentary wishes. They contain important provisions relevant to Probate administration that are often missing in Simple Wills. Such provisions include whether a Family Homestead and Family Allowance should be allowed, the Personal representative’s Powers and Authorities, Definitions, and whether a Bond is required. Otherwise the Probate administration may run into difficulties.
If the Will is likely to be contested by an heir or beneficiary then a Formal Will that includes Disinheritance and No Contest provisions is needed.
If the decedent uses a Living Trust to avoid Probate then a supporting “Pour Over Will” still accompanies the Living Trust. It gives any assets remaining outside the Living Trust to the Trustee for unified administration as part of the Trust estate.
Having a Will is usually necessary. When a California resident dies “Intestate”, i.e., without a will, the estate (other than any assets passing to Designated Death Beneficiaries or held in a Living Trust) go to the decedent’s Heirs under the Probate Code. The intestate distribution is not always what the decedent would have wanted. Therefore, having a Will or a Trust to carry out your wishes only makes sense.