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Will Preparation

Will Preparation – What is a Will?

A Will, often referred to as a Last Will and Testament, is an old and honored instrumentA Will, which is often referred to as a “Last Will and Testament,” is an old and honored instrument used to name an Executor to administer your Estate’s Assets and see to the distribution of those Assets to your Beneficiaries. In more recent history, a Will provides the Probate Court with instructions as to who should receive Title to the assets in your Estate. When one considers Will preparation, there are several types of Wills:

  • Oral Wills
  • Holographic    (i.e. personally handwritten)
  • Joint and Mutual Wills
  • Conditional and Contingent Wills
  • Statutory Wills
  • Attested, Self-proved, or Notarial    (Will witnessed by 2 or more people)
  • Pour-Over Will

Holographic Wills, often discouraged by most legal scholars, must be drafted in the Testator’s own handwriting and signed whereas typed or printed Wills require the signatures of two disinterested witnesses in addition to the Testator’s own signature.

Does a Will become a Public Record?

In most cases where there is just a Will and no Trust, your Will is filed with the Probate Court in order to Probate your Estate, so it will become a public record and view-able by anyone who might be interested. If privacy is important to you, privacy is better addressed with the combination of a Trust and a “Pour-Over Will” that may or may not ever end up in a Probate Court. Even if a Pour-Over Will is Probated, the information made public is far less detailed as the majority of your assets and private information will have been handled by the Trust which is a powerful estate-planning instrument outside the Probate Court’s purview.

If an Individual has a Will, can they avoid Probate?

With a Traditional or Holographic Will, Probate cannot be avoided. That said, estate-planning attorneys will often include a “Pour-Over Will” as a component of an Estate Plan that is designed, in part, to avoid Probate. When a Trust, such as a “Living Revocable Trust” is created, one’s assets are transferred into the Trust by changing Title into the name of the Trust. Oftentimes newer acquired assets (art, jewelry, guns, home furnishings, etc.) may not be legally “funded” to the Trust. Forgotten or overlooked property (coin collections, stock certificates, etc.) may have never been transferred when the Trust was originally created and funded. The Pour-Over Will may be utilized to gather such remaining (overlooked, never transferred) assets that are not in the Trust.

Is a Will necessary if there is a Trust?

In most cases, yes. As discussed in the above topic, a Pour-Over Will is a likely companion document to a Trust. Moreover, those who have minor children might have a Will drafted that designate Guardians.

Can an Individual draft their own Will?

Of course. There are no laws prohibiting an individual from drafting their own Will. One must be an adult of “sound mind” and be “competent.” There are rules in the very extensive, extremely-detailed California Probate Code that require Wills to be executed with certain formalities in order to be deemed valid. If those formalities are not followed the Will could be challenged and subsequently ruled invalid whereupon the rules of Intestacy may be followed rather that decedent’s wishes for his or her assets flow to which Beneficiary and when; and all other desires including such details as how minor children will be cared for and by whom.

Informed People Have a Lawyer Prepare a Will. Boilerplate is too Risky!

Recently, an associate was asked by a friend of his: “Why do so many people use lawyers to prepare their Wills when you can buy Will preparation software at Staples for $29.95?”

That’s a a valid question. After all, in addition to Staples, you can find similar software next to the flat screen TVs in any Costco or at Office Depot, and there are several well-know do-it-yourself (D.I.Y.) websites that promise to generate a Will online for less than a hundred dollars. So why, indeed, should you use an attorney to prepare a Will for you?

The same Internet, that attempts to sway you to believe a Will is but ninety bucks and twenty minutes of your time, can also shed light on the reasons you should never trust the reliability and validity of those canned documents. Are you really going to gamble with all of the numerous assets that you’ve received from your grandparents, parents, coupled with the entirety of all the personally-purchased assets you have amassed over an entire lifetime, and gamble ALL of it on boilerplate forms? What about how doctors will care for you following a serious traffic accident were you to lapse into a coma for a spell or were otherwise incapacitated? Think again.

People about to pull the trigger on using canned software, or online Will and Trust D.I.Y. document services, have sometimes had the wisdom to step-back and search the Internet for possible “horror stories” related to using these services. Such due diligence often changes their minds and they will make an appointment with a an estate-planning attorney. Worse than a-30 year old, with a home and car as primary assets, who might choose to create a boiler-plate Will, would be the 60-year old successful business owner with significant accumulations of assets and complex family dynamics (multiple properties, an out-of-state vacation home, one or more ex-spouses, children from prior marriages, step children, adopted children, minor children, etc.) and then foolishly decides to use an online service to generate a fill-in-the-blank Living Revocable Trust!

D.I.Y. Estate Planning is a Minefield of Risks

Computer software and online document preparation services “sell the concept” that the process of creating a Will is easy. As a result of constant bombardments of TV and radio advertising, many people mistakenly believe that their estate planning needs can be easily solved by simply filling in the blanks in boiler-plate documents.

Unfortunately, what people don’t realize, is that do-it-yourself estate planning is a minefield of risks where even an educated consumer can be lulled into a false sense of security by flawed documents that are not known to be flawed until too late: following incapacitation or death.

Below are just two cases that surfaced when we did a quick search from a huge and expanding pool of lawsuits:

D.I.Y. Will preparation risks

D.I.Y. document Risks in a California Case

D.I.Y. Will Preparation services are not a substitute for the advice of an attorney

Before actually using a D.I.Y. document preparation service, some software, or some fill-in-the-blank forms, take a serious look at their carefully-written disclaimers (usually buried at the bottom of the website). You will find that these disclaimers warn you that they (1) they are not acting as your attorney, (2) that the information they provide is not no substitute for the advice of an attorney, and (3) that they cannot apply the law to the facts of your individual circumstances. Well shucks! That just about precludes the resultant document from closely addressing your individual or families’ utterly unique set of circumstances. And will it hold up in court or if contested?

Disclaimers shed light on a document's ability to stand up to scrutiny in a court of law

D.I.Y. Software & Websites offer a false sense of security

The often tragic truth is, that so-called “legal” documents that are created with do-it-yourself software/websites may not be so “legal” when challenged in Courts of law. These D.I.Y. advertisements which often sound too good to be true, are so prevalent on radio and TV that consumers develop a false sense of security. People believe that the documents which are generated from canned and boilerplate forms will reliably address their estate planning needs. Tragically, where estate planning documents are concerned, people are unlikely to discover and learn of the document’s shortcomings and mistakes. They’ll be dead. Their loved ones will find out instead, if the documents are found “wanting” or totally invalid.

Mistakes and critical errors don’t become evident until you die, and the very people for whom you prepared your fill-in-the-blank Will to protect, are then left to deal with the fallout and consequences.

Hire a Lawyer for a Will Preparation!

Upshot? – Estate planning lawyers don’t simply fill in pre-printed forms. Attorneys, like doctors and CPA’s have years of schooling and experience to fully understand your families unique circumstances, advise you of the various choices that you have, share with you the subtle ramifications of one choice vs. another, and then custom-draft your estate-planning documents to address your unique estate planning needs. When your entire life including your future right up till your passing is on the line; when your life’s collected-assets, and the ability of your loved ones to seamlessly inherit without 1 to 2 years in a downtown Probate Court is on the line, document preparation software and online document services are just too risky.

Set Up a Day, Evening or Weekend Appointment Now

At Vincent W. Davis & Associates, we want you to feel at home and at ease discussing such an important issues as assets, family dynamics, and how you want your loved-ones’ to be blessed and cared for upon your passing. We want to provide you clearly understandable estate-planning options so you can make an informed decision about your family’s future. For assistance, please contact The Law Offices of Vincent W. Davis & Associates in Southern California for a complimentary consultation with Mr. Davis personally. Consultations are available in Los Angeles, Orange County, Inland Empire including Riverside or San Bernardino Counties. We also handle California Probate and Estate matters for out of state individuals.

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