WHAT IS A WILL?
A will is a legal document that sets forth your wishes regarding the distribution of your property and the care of any minor children.
Will (Self-Proving/Testamentary)To maximize the likelihood that your wishes are carried out, you want a will that is set forth in writing, and signed by you and your attesting witnesses (minimum of two in California). If your will does not meet these standards, your instructions may not be carried out.
A will is not made official until (a) the maker dies, and (b) a probate proceeding is filed to confirm the validity of the will and appoint the executor (when needed).
Holographic WillA handwritten will is referred to as holographic in legal terms, but there's more to it than just the handwriting. Technically, a holographic will is any that doesn't meet the requirements of another California statute, Probate Code Section 6110. This section specifies what you must do to make your will valid, and Section 6111 lists the exceptions to these rules.
You also run the risk of making mistakes in the language or terms of your will that can invalidate it if you try to write it yourself. Unless you have knowledge of the intricacies of estate law, writing your own will can be risky, whether you do it on a computer or by hand.
Oral WillOral wills are spoken testaments given before witnesses. They are not widely recognized from a legal perspective.
Living WillA living will has nothing to do with the distribution of assets, but rather sets forth your wishes for medical care in terms of life support should you be incapacitated. In California an Advance Health Care Directive is used in lieu of a living will.
WHY DO I NEED A SELF-PROVING TESTAMENTARY WILL?Creating a will gives you sole discretion over the distribution of your assets. It lets you decide how your belongings, such as cars or family heirlooms, should be distributed. If you have a business or investments, your will can direct the smooth transition of those assets.
If you have minor children, a will lets you provide for their care. If you have children from a prior marriage, even if they are adults, your will can dictate the assets they receive. Creating a will also minimizes tensions among survivors. Relatives battling over your possessions can weaken what may have otherwise been a strong family.
If you are charitably inclined, a will lets you direct your assets to the charity of your choice. Likewise, if you wish to leave your assets to an institution or an organization, a will can see that your wishes are carried out.
WHAT DOESN'T IT COVER?While wills generally address the bulk of your assets, there are a variety of items that are not covered by the instructions in a will. These items include community property, proceeds from life-insurance policy payouts, retirement assets, assets owned as joint tenants with rights of survivorship or community property with right of survivorship, and investment accounts that are designated as "transfer on death."
WHAT HAPPENS IF I DON'T HAVE ONE?If you do not have a will, you die intestate. In such a case, the State of California will oversee the distribution of your assets. Contrary to popular opinion, the state does not inherit your assets, but rather distributes them according to a set formula. In California, persons who are entitled to take property of the decedent by intestate succession are as follows:
If you are a single person with children and you die without a Will, then your entire estate will go to your children.
If you are single with no children and you die without a Will, your estate will be divided between your parents or 100% to the surviving parent. If both of your parents are deceased, then the estate will be divided among your siblings (or the issue of deceased siblings), if you don't have siblings, then to your nieces and nephew, and so on down the family line.
If you are married with children and pass away without a Will, your 1/2 of the community property interest will be passed to your spouse at your death. Now your spouse will own 100% of the community property. If you have separate property, the property will be distributed to your spouse and your children as follows:
If you have one child, the separate property will be distributed evenly between your spouse and your child.
If you have more than one child, your spouse will receive 1/3 of your separate property and the remaining two-thirds will be distributed in equal shares to your children (or the issue of deceased children).
If you are married and have no children when you die without a Will, your spouse will receive your half interest in any community property you hold. If you own separate property, your spouse will receive only half of that separately owned property. The other half will generally go to your living heirs, first your parents and then your siblings.
If you are a domestic partner and you die without a Will, trust or other estate plan, your surviving domestic registered partner will inherit a portion of your estate provided that both parties are registered with the California Secretary of State as domestic partners. The portion of the estate your surviving domestic partner will be entitled to will depend on whether you have surviving children or other relatives.