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.

For a complimentary consultation to determine whether a Statutory Will is appropriate for your situation, you may click here to schedule an appointment with us.

A major focus of estate planning is to ensure that there's a coordinated, coherent, and unified distribution of your assets. That is, you should have a relatively clear idea of who gets what after you pass away.

Many times people confuse exactly which assets get distributed in accordance with their Will. For example, if Bill created a Will where he says he leaves everything to Jessica, Bill may believe that Jessica will get all of his assets when he passes away. However, some assets are not controlled by the Will (i.e., nonprobate assets), and to the extent that Bill has those types of property, extra steps need to be taken to ensure that they go to the appropriate people.

Here's a rundown of some of these types of assets:

1. Joint Tenancy Assets - Any asset held as "joint tenants" or "joint tenants with right of survivorship" with others will automatically pass to the surviving joint tenants upon death. 
2. Community Property With Right of Survivorship - In California, married couples may hold some assets as "community property with right of survivorship". This operates similar to joint tenancy in terms of having property pass to the survivor.
3. Revocable Transfer on Death Deed - This is a special type of deed, which allows real property to be transferred automatically to designated beneficiaries upon the owner's death.
4. Pay-on-Death Accounts - Some types of bank accounts allow you to name a beneficiary to receive the account after the owner passes away.
5. Life Insurance - The proceeds from life insurance are payable to the beneficiaries that the policy owner(s) have named.
6. Retirement Accounts - Similar to life insurance policies, retirement accounts get paid to the beneficiaries that the owner(s) have named.

It's easy to lose track of all of these assets, especially if for example, you've switched jobs a number of times and have multiple 401k accounts with various employers. However, to have a clear and unified estate plan, it's important to have a thorough understanding of who will receive each of your assets at the time of your death, since the Will controls the disposition of only certain types of property.

Not all Wills must be witnessed. If the signature and material provisions are handwritten by the Testator, then it may qualify as a holographic Will. See California Probate Code Section 6111(a). Holographic Wills are generally done without the consultation of a lawyer and as a result contain often contain ambiguities or incomplete instructions as to how the Testator's assets are to be distributed. 

Commercially Printed Will?

California Probate Code Section 6111(c) states: "Any statement of testamentary intent contained in a holographic will may be set forth either in the testator’s own handwriting or as part of a commercially printed form will." Therefore, the use of commercially printed forms is permissible.

Invalidity?

If the holographic Will is not dated, there are some situations in which it may be found partially invalid. California Probate Code Section 6111(b) states:

b) If a holographic will does not contain a statement as to the date of its execution and:

(1) If the omission results in doubt as to whether its provisions or the inconsistent provisions of another will are controlling, the holographic will is invalid to the extent of the inconsistency unless the time of its execution is established to be after the date of execution of the other will.

(2) If it is established that the testator lacked testamentary capacity at any time during which the will might have been executed, the will is invalid unless it is established that it was executed at a time when the testator had testamentary capacity.

Holographic Wills can be helpful if drafted clearly enough. However, most laypeople who aren't familiar with the estate planning process are likely better off using the California Statutory Will form as an alternative to hiring a qualified estate planning lawyer.

One of the most challenging parts for people unfamiliar with the estate planning process is the specific vocabulary used to talk about each of the documents involved in an estate plan.

In this post, we'll cover some of the words associated with the creation of a Will to help you be more conversant with your estate planning lawyer.

1. "Testator" - This is the person who makes a Will. 
2. "Gift", "Bequest", or "Devise" - These words are used interchangeably, and they all refer to property that you would like to give away at the time of your death. Thus for example, you might tell your estate planning lawyer, "I would like to make a bequest of $1,000 to my niece, Sally, when I pass away."
3. "Codicil" - From time to time, you may need to revise or amend your Will without rewriting the Will entirely. You can do this by creating a codicil to your Will.
4. "Executor" - This is the person that you name in your Will to carry out the tasks of collecting your assets, paying off your debts, and distributing your property to your beneficiaries.

A Will is amendable and revocable up until the time of death. A "Will" also includes the original Will and all Codicils to it.