Holographic Wills in California
One type of do-it-yourself will is the holographic will, which must be in the testator's handwriting (in other words, not typewritten or printed). It must be signed by the testator, but unlike other types of wills, no witnesses are required. A holographic will also should be dated, although this is not mandated by the Probate Code.
Warning about Holographic Wills
Courts have been lenient in trying to interpret holographic wills when questions arise, but judges will not rewrite a holographic will to make it valid. A holographic will is probably the most risky do-it-yourself estate plan because of the lack of guidelines involved. The results can be so ambiguous and incomplete that a holographic will can cause more trouble for the estate than if the testator had no will.
Distribution Plan for a Do-It-Yourself Will
Whether you are filling in the blanks in a form will, writing a holographic will, or using software to write a living trust, the distribution plan is the heart of the estate plan. The question here is: Who should receive your estate, and how much should each person, charity or institution, receive? Equal shares for everyone? Specific assets or amounts of cash for everyone? Should an inheritance be held in trust until age 21? The choice is yours.
Don't Forget The Executor
The executor of the will is the person who will administer, or manage, your estate after you have passed away. Generally the person or persons nominated as executor will be appointed as executor by the court, but if you do not propose an executor in your will, the court will rely on state law to make the choice.
Guardians for Minor Children
If your children are under 18, the will also should nominate a guardian or guardians for them. This provision will be helpful in any future proceeding to determine guardianship for the children. However, a nomination of a guardian in a will is not binding on the court that is reviewing the guardianship petition.
Distributions to Young Persons
The estate plan should also have some provision to retain bequests for children in a trust until they reach a specified age. The age when the trust is distributed to the child can be as young as 18, but many parents prefer that their children receive their inheritances when they are older to ensure that funds will be available for their college educations. The trust should specify whether the child will receive the income from the trust, or whether it will be retained in the trust, and how the trustee can spend the principal on behalf of the child. The trust also should appoint a trustee and several backup trustees.
If your estate is large, you should not be using a do-it-yourself will because estate tax law and income tax law is complicated and your estate could suffer large tax losses. Having an attorney prepare an A-B trust for your estate will be more costly than a do-it-yourself will, but your estate will benefit.
If your estate includes more than $100,000 in probate assets, it will probably be subject to probate when you die. Your estate is subject to probate whether you will a will or no estate plan at all. You can avoid probate with a living trust, joint tenancy assets, IRA accounts, and POD accounts, to name a few methods of avoiding probate.