Do-It-Yourself WillsIf you have decided that you will prepare your own will or trust without the advice of an attorney, this page discusses some of the problems and guidelines that you should keep in mind. The purpose of this discussion is not to encourage the use of do-it-yourself wills and trusts, but to explain the difficulties that may be encountered. The information here applies only to California law, and the laws of other states may be considerably different.
FORMS AND BOOKS: Information about drawing up your own estate plan is available on the internet, through various types of software, and you can always find a form will in a book store. Many forms and books claim that they were prepared with California law in mind, but it is discouraging to see the number of forms and books that make basic mistakes that can ruin an estate plan. Many will forms, for example, include a place to notarize the testator's signature. That is not the proper procedure in California and the Secretary of State's office has warned California notaries to seek an attorney's advice before notarizing a will. (Wills should not be notarized because two witnesses are required for a will, and the Notary is only one witness. Even if two Notaries were used, the required text of an acknowledgment used by a Notary Public is not sufficient for a will.) If you are going to use a form will or trust, consider reading the relevant sections of the California Probate Code, which is the official source of information about the requirements for a valid estate plan.
HOLOGRAPHIC WILLS: 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. 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: 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 will be your beneficiaries, and how much should be received by each person, charity or institution? Equal shares for everyone? Specific assets or amounts of cash for everyone? Should an inheritance be held in trust until age 21? You also should consider the possibility that one or more of the persons mentioned in your will might not survive you. Each bequest either should have an alternative recipient, such as the original heir's children, or the bequest should "lapse" if the heir does not survive you. All heirs should be adequately identified by name and/or by relationship to the testator, and charities and other institutions should be described by their full name and address.
EXECUTORS: The executor of the will is the person who will 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. (Probate Code section 8461 has a list of persons who have priority to be appointed as administrator of the estate if no executor is nominated in the will, or if there is no will.) Here again, you should consider the possibility that your first choice for executor might not survive you. For that reason, your will should propose several executors. In most cases your will also should waive the bond for the executor. However, most California courts will not waive bond for an out-of-state resident.
WITNESSES: In California two witnesses are needed for a will that is not a holographic will. The Probate Code provides that the witnesses must watch the testator sign the will and then each witness must sign a statement in the will saying that the witnesses saw the testator sign the will. The witnesses also must understand that the document is the testator's will. The witnesses should not be related to the testator nor should they be beneficiaries of the estate.
GUARDIANS FOR MINOR CHILDREN: If the testator's 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.
TESTAMENTARY TRUSTS FOR MINOR CHILDREN: 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.
THE RISK INVOLVED WITH DO-IT-YOURSELF ESTATE PLANS: There are obvious savings in legal fees by using form wills and trusts, but there are also risks involved. One of them is that some legal problems, such as defective forms, violations of state law, or improper witnessing, will not be apparent to the testator or trustors when the documents are signed. It may be only after death occurs many years later when the problems are discovered, and at that point it is too late to revise the will or trust. The family might find, for example, that the will does not accomplish what the testator wanted and that the local courts are unwilling to allow any change to the estate plan.
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