There are four types of wills: witnessed; holographic; statutory and international. All four of these will be discussed in more detail below. Wills are normally incorporated into a revocable living trust since a will is subject to probate and the attendant fees and costs. The fees can easily be thousands of dollars. If you have a will and not a revocable living trust, we urge you to contact our office for a complimentary in-house consultation only costs you will incur if the will is probated. In San Diego County, there are two courthouses which are for probate. The first is in the Madge Bradley Courthouse in downtown San Diego and the second is in Vista in the North County of San Diego.
The first category of wills is a witnessed will. This must meet all of the requirements as listed: must be in writing; must be signed by the testator or signed under the direction of the testator; signed in the presence of two witnesses who are both present at the same time and signed by the two witnesses with the understanding that they are signing a will as a witness. If not all of these requirements are met, the will is not valid and the estate will proceed as an "intestate" estate which has mandatory distributions under the law. The Purpose of a will or any estate plan is to insure that the beneficiaries chosen by the testator receive the property, however if the will is invalid because it does not meet all the requirements, the chosen beneficiaries may not receive their inheritance. Our firm does not normally recommend a witnessed will if the value of the estate in total exceeds $100,000 or there is over $20,000 in real property as this will necessitate probate of the estate.
The second category of wills is holographic. The holographic will is very easy to contest since there are only two requirements: that the will be in the own handwriting of the testator and that the will show testamentary intent. There are often issues as to whether the handwriting is that of the testator and handwriting experts are then employed to take an exemplar and give an expert opinion as to whether to signature is that of the testator or not. In addition, there are other issues such as capacity and duress since normally holographic wills are not notarized. In addition, there is the requirement that there must be testamentary intent from the "four corners" of the documents. Since most holographic wills are not written by attorneys nor with the advice of an attorney, this can be an issue. As above, if the holographic will is not valid, then the estate will have to be probated.
The third category of wills is statutory. These are most often found in stationary and other stores and are pre printed. These are normally not prepared by attorneys and there is a strict requirement that there are to be no changes allowed to the printed verbiage. As such, these are not wills which are recommended by our firm since no changes can be made to the language and many of the pre printed forms have not been changed for many years and do not reflect the current state of the law. It is worth a complimentary and confidential consultation in our office to have a proper will prepared if your estate is under $100,000 total or under $20,000 in real property.
The fourth category of wills is international. An international will is a will which was prepared in a foreign country. In these cases, the courts look to the laws in the country of origin and country where the will was executed. This requires knowledge of the law of that country and can become very complicated.
Capacity is an issue in all wills.An individual creating a will must have had capacity at the time of signing. This means that the person creating the will (the testator) has sufficient mental capability to understand the nature of what he or she is doing, the nature of his or her property and the relationships with potential beneficiaries. At Law Offices of Scott C. Soady, APC, we can discuss any potential capacity issues with you.
You may also have heard the term “pour over” will. These are wills which do not stand alone but are used together with a trust to allow assets which are inadvertently left out of the trust at time of death. This type of will allows only the asset left out to go through the probate procedure and then be “poured over” into the trust.
Another critical issue with wills can be caused when individuals who have a will attempt to revoke them or amend them improperly. As with any estate planning document, crossing out words or adding new words to the document may be held invalid. It is essential that wills be revoked or amended in a legal manner or they will be not be effective. Contact us if you have a will and are thinking of making changes.
Contact Us Online or call us at 877-HELP411 [877-435-7411] in Southern California or 858-618-5510 or e mail us. We will be pleased to offer you a complimentary and confidential in-house consultation up to a length of 30 minutes to discuss strategies and techniques to assist in protecting your rights and trying to obtain your legal goals.