Wills

A last will and testament is a legal document by which you (the testator) spell out your wishes as to how your property will be distributed when you die. It also names an executor to manage your estate, distribute your assets according to the terms of your will and make sure your wishes are carried out.

What should I do with my last will after I sign it?

After you sign your last will, you should keep it in a safe, easily accessible place. Be sure that the person you have appointed as your executor knows exactly where you stored your last will. You do not have to file it with the court or place it in the public record.

What happens to my debts after I die?

The general rule is that all debts must be paid before any assets are distributed. Your outstanding credit card balances, for instance, are generally paid before any money or gifts are distributed to your heirs.

An exception to this general rule is made for “secured debts,” that is, debts that allow the lender to take possession of a specific piece of property if the debt is not repaid. Examples of such secured debts are mortgages or auto loans. If a piece of property is serving as collateral for a secured debt, that property can be distributed to a beneficiary, but the debt will generally go with it. For instance, say you have a car worth $10,000 and a loan on the car of $5,000. You can leave the car to someone in your will, but it will become that person’s obligation to pay off the loan.

In general, people cannot inherit another person’s debts. If there is not enough cash in the estate to pay debts, all property of the estate will be sold to pay the debts and no one will inherit anything. For example, if someone dies owing $12,000 in credit card debt, but has cash and property worth only $10,000, the property will be sold and the $10,000 will be paid to the credit card issuer.

Can I change or revoke my will after I make it?

You can revoke a last will any time before death by making a new last will that states that all prior last wills are no longer valid. To revoke a last will without making a new one, all you have to do is intentionally tear it up, deface it, burn it, or destroy it. If this is done accidentally, the last will is not revoked.

What happens if you make a new last will (which revokes all prior last wills) and then decide that you like your old last will better?

You need to make an entirely new last will that replaces the new one and mimics the old one. The old last will is invalid and cannot be revived after it has been revoked.

One way to make changes to a last will, without revoking it entirely, is to make a codicil, which is an amendment to a last will. However, a codicil must be signed and witnessed just like a last will, so it may be easier to make an entirely new last will.

Be sure not to make changes to your last will after it has been witnessed and signed. If you cross out a person’s name or add clauses to a last will that has already been signed, you risk making the whole last will invalid.

Can I make a handwritten last will?

A handwritten last will is called a “holographic last will.” It is valid in California if all of its material provisions and clauses are handwritten. However, because most handwritten last wills are often not properly written, they are not generally recommended. Courts can be unusually strict in determining whether a holographic last will is authentic. More importantly, it is not recommended that people revise their last wills by hand.

Is my out-of-state last will valid if I move?

If a last will was validly made while you were living in California, it is probably valid in your new state. However, if your last will was not “self-proved,” (meaning that the will includes a sworn statement from the witnesses who watched you sign your will) it may not be accepted by certain courts. If not self-proved, the court may require your witnesses to sign an oath after your death swearing that they saw you sign your last will. Because of the expense involved in finding your witnesses, it is probably best to rewrite your last will after moving to another state.

California allows a last will to be self-proved. If you move to another state that also allows self-proving wills, it would be unnecessary to locate witnesses to your California will before beginning the probate process.

Do I have to file my last will with a court or in public records?

You do not have to file your last will with a court or other governmental authority after you sign it. After your death, however, your last will must be filed with the court. It will then become public.

What happens if I die without a last will? What is intestate succession?

If you do not make a last will, state law will determine who gets your property. This process is called “intestate succession.” In California, your property is first divided between your spouse and your children. If you are not married and/or have no children, your property is distributed to your closest living relatives. If the administrator of your estate cannot find a living relative entitled to your property under the law, your property transfers to the state.

What makes a last will legal?

The court will not enforce your last will unless the following criteria are met:

• Soundness of Mind: You must be of sound mind.
• Free Will: You must be acting of your own free will without undue influence or duress from others.
• Witnesses: At least two people must watch you sign the last will. They cannot be related to you and cannot be entitled to receive anything under the last will.

In addition to these provisions, the law also requires that a last will’s appearance be uniform: all important sections should be entirely typewritten or computer-generated. Although California allows last wills that are entirely handwritten, this option is not recommended.

Can I use my will to name a guardian to care for my young children and manage their property?

Yes. If both parents of a child die or become otherwise unable to care for a minor child, another adult — called a “guardian of the person” — must step in. The guardian will be responsible for raising your children until they become legal adults. You and the child’s other parent can use your wills to nominate someone to fill this position. To avert conflicts, you should both name the same person. For more information, see Guardianship for Your Children.

You can choose that same guardian to manage property that you leave to your minor children or you can name  a different “guardian of the estate” to manage that property.

Must I leave something to my spouse and children? Can I disinherit someone?

You can leave anyone out of your last will, subject to certain limitations. Many laws have been enacted to protect spouses and minor children.

Disinheriting Spouses. The law protects surviving spouses from being left with nothing. If you live in a community property state (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, or Wisconsin — or Alaska if you have made a written community property agreement), your spouse automatically owns half of all the property and earnings (with a few exceptions) acquired by either of you during your marriage. You can leave your half of the community property, and your separate property, to anyone you choose.

In all other states, a surviving spouse has a legal right to claim a portion of your estate, no matter what your will provides. But these provisions kick in only if your spouse goes to court and claims that share.

If you don’t plan to leave any property to your spouse, either through your will or outside it, you should consult a lawyer — unless your spouse willingly consents in writing to your plan.

Disinheriting Children. Generally, it’s perfectly legal to disinherit a child. If you wish to disinherit one of your children or to give one child less than another, you should clearly state that intention in your last will. If, however, it appears that you didn’t mean to disinherit a child – such as if a child was born after you made your will — then the child has the right to claim part of your property.

Can someone challenge my will after I die?

Very few wills are ever challenged in court. When they are, it’s usually by a close relative who feels somehow cheated out of a share of the deceased person’s property. To get an entire will invalidated, someone must go to court and prove that it suffers from a fatal flaw – i.e. the signature was forged, you weren’t of sound mind when you made the will, or you were unduly influenced by someone.