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What Is A Will? Must I Have A Will To Have A Proper Estate Plan?


A will is a document that transfers all of your estate’s assets according to your instructions. To have a proper estate plan, you must have a will. If you have a trust, you have to have a will to go along with it because there are going to be some things that are not funded in your trust. In California, the limit for a small estate is $150,000. When we create a trust, we won’t put your motor vehicles, day-to-day checking account, or certain personal property into the trust. If you acquire new property after the creation of the estate plan and you haven’t had a chance to get it funded into the trust before a tragic accident happens and you pass away, that will be problematic. However, we can plan for this by putting those assets in the will and ensuring that they will be administered to the trust upon your death.

If I Have A Will, Do I Still Need A Trust?

If you have a will, you may or may not need a trust; it will depend on the size of your estate. If you have children, then you should have a will regardless of whether you have assets. This is because the will is where you will nominate the guardian of your children. You could do that in a separate document, but in my opinion, it’s more effective to have it done in a will. You don’t necessarily need a trust unless you want to avoid probate. If you are fine with your estate going through probate and you have a small estate, then a will is sufficient. If you have a large estate and you do not want it to go through probate, then you will need a trust along with the will.

How Is A Will Made Valid?

There are two types of wills: one that is holographic and one that is not. A holographic will is a will that is written entirely in the testator’s own handwriting, and is dated and signed by the testator. This type of will has existed in California almost since California became a state, because many people would come out here, start a gold mine, and then scratch out their last will to give their gold mine to whomever they chose. Today, the most commonly used will is one that is either typed or handwritten and witnessed by two people who are not receiving anything from the will. You can have a self-proving will in which the people who are signing attest to the fact that they saw the person write and sign the document. If a will doesn’t have a self-proving provision with a signature affixed by both of the witnesses, then the witnesses will have to execute a document that goes into the probate file indicating what is called a proof of subscribing witness, and that is how a will is made valid.

Can A Will Ever Be Challenged Or Opposed?

A will can be challenged or opposed in the court through a will contest. There are varying reasons for challenging the will. Most often, the person who challenges it will have had their inheritance reduced or eliminated. Oftentimes, the grounds for that challenge is fraud, undue influence, or interference with expected inheritance. A will contest can be settled through mediation or by taking a final judgment with the court. It should be known that the expense of defending the will comes out of the estate. For this reason, challenging a will should not be taken lightly, as it could greatly reduce or eliminate entirely the value of the estate in legal fees and costs, expert witnesses, and handwriting experts.

Can A Will Avoid Probate?

A will only avoids probate if the estate is small enough to meet the statutory requirements under Probate Code Section 13100.

For more information on Having A Will For Proper Estate Planning, a consultation is your next best step. Get the information and legal answers you are seeking by calling (916) 915-8866 today.

California Probate Lawyer Peter Cianchetta

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(916) 915-8866

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