Are verbal wills valid California?
The short answer is: no. A will is a legal document, which lists down how a person called a “testator” would like his assets to be distributed after his death. A will also mentions the name of the executor of the will. If a person dies without leaving behind a valid will or intestate then his estate and all his assets have to be probated.
Just having something scribbled on a piece of paper does not amount to a valid will. The state of California, through Probate Code sections 6110-6113 specifically requires that wills be in writing.
The following is a summary of the various types of Wills and their validity in California:
Holographic will: A holographic will is a will, which is written by hand and not printed or typed on a computer. In California, a holographic will is valid only if all those sections of the will that make the will valid are written entirely in the testator’s hand, it is dated, and the will is signed by the testator. It must, however, be noted that the person writing this will must seek some professional legal opinion to ensure that none of the important language or components are left out, thereby, defeating the purpose of drawing up a valid will.
Oral will: An oral will is a verbal will and is also called “nuncupative will.” It is not valid in California and only recognized in very few states, and only under exceptional circumstances like an impending death of a soldier in a foreign land. This kind of will expresses a dying person’s wishes of disposing of his assets in the presence of a few witnesses. This is done in extreme circumstances where there is no time to do the procedures related to a written will.
Video will: A video will is an effort to leave your testamentary wishes on a video tape or other digital recording device. Video recordings are not valid wills in the state of California. Like an oral will, this could be done in those cases where time is of essence like in the case of a dying person. It could be admitted in the court only as a supportive tool of a written will, and not individually and that too only in extraordinary circumstances.
A formal or traditional will: This kind of will is in writing and is signed by the testator and also signed by at least two witnesses. This will can be signed on behalf of the testator, but in his presence and as per his directions. The witnesses must be present at the time of the testator’s signing of the will or at the acknowledgement of the signing. This is the most traditional kind of will and is recognized by the state of California as valid.
A California statutory will: A California statutory will must be completed and signed by a testator, and at least two witnesses must be present while the testator signs the will. The witnesses must also sign in the presence of the testator.
A will executed under the Uniform International Wills Act. An international will is valid in California. It does not matter where it was made, or where the asseets are located, or the nationality, domicile or residence of the testator.
An international will must be in writing and can be written in any language. Under the UIWA, the testator must state, in the presence of two witnesses and a person authorized to act in connection with international wills, that the document is the testator's will and that the testator knows the contents of the will.
Thus we have seen that a legal and valid will is only recognized in certain formats. Be sure and prepare your will pursuant to these guidelines.
Do-it-yourself (DIY) estate planning - Is it worth saving the few dollars?
Through online legal document portals, consumers have access to a number of DIY legal documents available on the internet to create their own wills and power of attorney. This may save them money and time. But has the internet really empowered the public to handle their estate planning or does it create many avoidable problems?
Most lawyers agree that using online legal documents may result in errors. While filling up the online documents, one may miss a simple question; some terms may be difficult to understand and may confuse the user and she may fill it incorrectly; and some may not update their online wills when changes are needed. There are numerous examples of a consumer who created an online Will, but had not updated it after some of his beneficiaries died.
I was recently involved in a situation where a decedent, using will kit purchased from an office supply store, created his "Will" with the assistance of his friends. His one and only wish was that his child not be appointed fiduciary and not have any control over the finances. Either because he did not understand the form, or did not complete it, the wish was not upheld and the estate plan virtually worthless. Worse yet, the interested parties spent ten times the amount of an attorney prepared the estate plan fighting to enforce this wish.
An attorney can help in prevent errors and may also help in reviewing and updating the estate plan in case of changes in the family including those through divorce, pre-deceased beneficiaries or new births in the family. An experienced lawyer can show you methods of avoiding costly probate paperwork and court proceedings, and explain the intricacies of using trust funds and exemptions in your asset protection strategy.
If you own no real property or valuable personal property, have only one or two small bank accounts, and have no minor children, you can probably write your own Will, with the assistance of a reputable book, software package or online service. But even on following all the instructions, if the Will is not properly signed, it is presumptively invalid and your beneficiaries will spend large sums of money in legal fees rectifying the errors.
Common errors encountered when you do your own estate planning documents:
1. Failing to sign the Will;
2. Failing to execute the Will, in the presence of witnesses;
3. Invalid witnesses during execution of the Will;
4. Invalid amendments to a Will; and
5. The Will is outdated at the time of death.
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What are the Crucial Estate planning documents?
I am often asked to name the essential documents for an estate plan. In California, an estate plan should include four or five basic estate planning documents. If your current family and financial situations do not warrant the need for a Revocable Living Trust, then your foundational estate plan based on a will-based estate planning will include the following three important legal documents:
1. Last Will and Testament;
2. Advance Medical Directive; and
3. Financial Power of Attorney.
Last Will
A will is simply a set of instructions on how to distribute your assets to loved ones and charities upon your death. But it does not cover any specific beneficiary you would have mentioned for any account or savings plan. If such details need to be altered, they need to be done with the said accounts and plans.
Advance Medical Directive
This is a document which gives the medical power of attorney to someone if the physician or court decides that you are incapacitated to make a decision. This allows the person to make health care decisions for you in case of any need. This document also describes your wishes regarding the use of life-sustaining measures in the event of terminal illness.
Financial Power of Attorney
This enables the concerned to manage assets that are titled in your individual name, including retirement plans, and assets titled in joint names as tenants in common. Choose carefully because, in general, this person can buy and sell your assets. In estate planning, the most commonly used versions of the financial power of attorney are:
1. A Durable Power of Attorney, which goes into effect as soon as you sign it; and
2. A Springing Durable Power of Attorney, which only goes into effect after you have been declared mentally incapacitated.
Revocable Living Trust
If you require a Revocable Living Trust, then this document will contains a detailed set of instructions covering three important periods of your life:
1. What happens while you are alive and well;
2. What happens if you become mentally incapacitated; and
3. What happens after your death.
In addition, assets held in the name of your Revocable Living Trust at the time of your death will avoid probate.
This is a brief overview of all the different documents which should be in order for good estate management. To determine which one fits your exact requirement, however, it is mandatory to consult an estate planning lawyer and create these documents as pursuant to the legal requirements of your state.
