The Statutory Will is essentially a form with a number of blanks for the Testator to fill in. The methods by which your assets will be transferred at the time of your death are somewhat limited, but may be more than adequate for individuals with small estates. It is important to note, however, that relying upon a Will, statutory or otherwise, may require your estate to be probated.

The California Statutory Will and the laws that give rise to it are provided in California Probate Code Sections 6200-6243. Under Probate Code Section 6220, any individual of sound mind and over the age of 18 may execute a California Statutory Will. A Statutory Will must also be witnessed by at least 2 people who both observe the Testator's signing and who both sign their names in the presence of the Testator, as described in Probate Code Section 6221(b).

If you are in a situation where you do not have time to consult with an estate planning lawyer, you may want to establish a Statutory Will as a stop-gap measure until you are able to meet with a lawyer to discuss the specifics of your estate plan. Often, this might be before a vacation or a major medical procedure. By having a Statutory Will in place, you will have a plan, even if imperfect, for how your assets will be distributed.

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The Will is one of the most fundamental estate planning documents. The Will's main function is to provide instructions on how you want your assets distributed at the time of your death.

The current trend in California is to use revocable living trusts; however, the Will is still useful for individuals who have relatively small estates that would avoid probate administration anyway. Even for those who utilize the revocable living trust, a so-called "pourover" Will is prepared to ensure assets that were not re-titled in the name of the trust during the deceased person's life get transferred to the trust after his or her death.

A Will may also be used for other purposes. For example:

1. Nominate guardian(s) to care for minor children.
2. Funeral or burial instructions.
3. Specify Powers of Appointment.

The nice part about a Will is that it is relatively low-cost to create. In fact, the State Bar of California even has a free statutory Will form that you can use. 

Every estate plan should have a Will as one of its components. Wills, however, can come in several varieties and have different requirements depending on which one you select.

Formal Witnessed Wills

A formal Will is usually produced on a word processor or other text editor. It has to be signed by you (the creator of the Will, also known as "Testator") and be witnessed by 2 witnesses. Best practice is to also include the date the Will was signed on the Will itself.

California Statutory Will

If you have a very simple situation, very little in the way of assets,  or an immediate need (e.g., before you travel) it may make sense for you to utilize the California Statutory Will.  This Will is essentially a form created with the Probate code of the State of California. (See California Probate Code Sections 6200-6243).

Holographic Will

A holographic Will is one that is completely hand-written by the Testator. It must be completely handwritten by the Testator but it does not require witnesses.  

Ancillary Provisions in the Will

The Will should also designate someone to act as your "Executor"--he or she will be the person in charge of making sure that your wishes are carried out. The Will is also where you may appoint a guardian for any minor children that you have.  Finally, you may have a "power of appointment" that another person granted you, which may require you to exercise that power in your Will by including a provision in it. 

Pour-Over Will

Wills that are created in conjunction with revocable living trusts are often referred to as "pour-over Wills". The reason is that the primary function of the Will is to "pour-over" the assets into the revocable living trust that you created after you die. In this context, the Will is essentially a back-up document in case you forgot to properly re-title certain assets in the name of your trust. As mentioned in prior posts, avoiding probate is a major goal for most clients, and in most counties, Los Angeles included, the probate process can often take over a year to complete.