Overview
The Law Office of Howard L. Hibbard prepares Wills and Trusts for clients with estate values of less that $5 million. Estate planning, including wills, trusts, and powers of attorney, can lessen the burden on your heirs and loved ones in the event of your incapacitation or death. A trust or power of attorney can also save time and money by avoiding lengthy probate procedures.
It is important to discuss estate planning options and tax consequences with an attorney and financial professional to determine the best estate planning options for your unique situations. Please contact us for a free consultation with any questions concerning setting up a will to protect your assets and your loved ones.
General Information about Wills
A person who dies with a will is called a testator. The testator generally appoints an executor in the will document who is responsible for the administration and distribution the will assets and property.
A Will is a document that outlines and directs how a person’s estate will be distributed upon their death. California law strictly governs the requirements for a will. These requirements are outlined in Cal. Prob. Code §§6100, et seq. A will may be made, in writing, by any competent person over the age of 18. The will must be witnessed and signed by two, non-interested adults who understand that the document is the testator’s will. If these basic requirements are not met, a will can be invalidated. In addition, will provisions must comply with the statue of frauds and the rule against perpetuities.
A will is subject to administration by the Probate Court. Administration by the Court can be very time-consuming and expensive.
If a person dies intestate (without a Will or other testamentary document) the estate will also be subject to administration by the Probate Court. Administration by the Court can be very time-consuming and expensive. In addition, there may be significant legal, tax and financial consequences if a person dies without a will or trust.
Types of Wills
There are many types of wills. Each type affects the final disposition of the estate differently. All wills, even “pour-over” wills are subject to probate. Our attorneys conduct a comprehensive interview with each of our estate planning clients to ascertain what type of will, or other estate planning documents are most appropriate.
“Pour-Over” Will
A popular will for use in conjunction with a trust is a “pour-over will.” A “pour-over will” provides for all property owned by the testator upon his/her death that is not in the trust to “pour-over” into the trust upon the testator’s death. Tax consequences may arise depending on the type of property that is poured-over. For example, transfer of real property from an individual to a trust will result in tax consequences. If you are considering a revocable trust, pour-over will or durable power of attorney, please visit our Fixed Fee Services page.
In the event that a person dies with a trust but without a will, any and all assets that are not specifically in the trust will be distributed by intestate succession, meaning as it would if there were no estate planning documents at all.
Joint Wills
Joint wills are created by two people, usually husband and wife or life partners, wherein each agrees that upon his/her death, the entirety of the estate is left to the surviving person. A joint will also stipulates as to the final distribution of the estate upon the death of the second person. This type of will is tantamount to a contract and cannot be unilaterally revoked.
Joint wills keep the surviving partner from changing the will after the death of one of the makers. This can be both positive and negative depending on the circumstances. For example if the second partner remarries, they cannot change the will to pass the estate to their new spouse or stepchild but if for example, the will outlines that the estate pass to the couple’s son and the son wins the lottery and does not need the money, the will cannot be changed unless the surviving spouse goes through the costly and time-consuming legal procedures to invalidate the original will.
Holographic Wills
A holographic will must be written entirely in the hand of the testator and dated. This will cannot be typed or printed or written by anyone other than the testator. A properly executed holographic will be valid even if it is not witnessed by a third party. Evidence that the will is that of the testator, that the testator was of sound mind at the time the will was created and evidence that the document itself distributes the estate to beneficiaries must be shown for the will to be valid.
Conditional Wills and Oral (Nuncupative) Wills
A conditional will may be a holographic will and does not take effect until a specific condition is met. If the condition is not met, then the estate will be distributed by intestate succession as if there had been no will at all. California state law does allow people to enter into contracts for the distribution of estate assets.
Oral or nuncupative wills are not recognized in the state of California.
Services We Provide
Our office provided customized and thoughtful solutions to our estate planning clients. Available services include: (1) case-by-case assessment of each client’s requests, wishes and needs; (2) preparation of customized estate planning documents, (3) legal research as necessary, (4) legal representation and dispute resolution as necessary. If you have questions regarding wills or other estate planning options, please contact us for a free consultation.