What is a Last Will and Testament?

A. What Exactly is a Last Will and Testament?

A Last Will and Testament (or simply a "Will") is a legal document that directs the disposition of your assets upon your death. There are certain legal requirements that must be met, such as some sort of testamentary intent, and it can include other directives, such as nominations of who you want to manage your estate (the executor).

There are statutory requirements to the creation of a Will that must be followed to ensure that your Will is valid. If you utilize the services of an attorney to create a Will, that attorney Will likely assist in the proper execution of your Will.

B. Do I Need a Will if I Have a Trust?

It's not an absolute requirement, but a Will is commonly prepared when you establish a trust which is referred to as a Pour-Over Will.

The purpose of a Will is to transfer assets that survive your death to designated beneficiaries; if you have a trust, that designated beneficiary is the trustee of your trust. If you are curious as to what assets may survive your death, see What is Small Estate Administration?.

C. Do I Need to Update My Will if I Update My Trust?

No. It's a common misconception, even among attorneys, that you must update your Will every time you update your trust. California Probate Code section 6300 provides that if your Will directs distribution to your revocable trust, that direction is valid even if the trust is changed after the execution of your Will. 

There may be reasons to update your Will, such as changing the order of executors named, but the distribution provisions of your Will do not need to be changed unless you intend for the distribution to be to a totally different trust.

D. Is a Pour-Over Will Different Than a Regular Will?

No. A Pour-Over Will is just a specific type of Will which directs the distribution of your assets to the then-acting trustee of a trust. Typically a Pour-Over Will is created as part of a trust package when you are setting up a trust.

E. Is a Holographic Will Different Than a Regular Will?

Yes. The requirements for a Holographic Will are very informal and very different than an ordinary Will.

For Holographic Wills, California Probate Code Section 6111 only requires that your signature and the material provisions are written in the testator's own handwriting. This does not mean cursive, it simply means that the Will must be written by hand. It should also be dated.

We have administered Holographic Wills that were single sentence documents, but it's definitely safer to have a formal Will prepared by an attorney.

F. Do I need an Attorney to Prepare a Will?

No. You can prepare a Will on your own, but it is still subject to the statutory requirements. The statutory requirements vary depending on whether your Will is holographic, a form, or otherwise. It is always best to consult with an attorney or to have your Will prepared through an attorney's office to ensure it meets statutory requirements.

G. What is the difference between a Testator, Executor, and a Beneficiary?

A testator is the person creating the Will--the person whose assets will be distributed upon their death.

An executor is the person who is nominated to manage the testator's estate if the testator's estate goes through formal probate administration. There can be alternate executors appointed in a Will.

A beneficiary is a person who inherits under a Will. There can be various gifts under a Will, and a beneficiary may be contingent, meaning that the person will only inherit upon the occurrence of a condition.

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