The Last Will and Testament actually can be done in different kinds of Wills. In fact, in California, explains Brian D. Lerner, there are several different types of Wills. The first type of Last Will and Testament is known as the witnessed will. Brian Lerner states that this will shall be in writing and satisfy the following requirements. The Last Will and Testament shall be signed by the testator or in the testator’s name by some other person in the testator’s presence and by the testator’s direction or by a conservator pursuant to a court order to make a will.
The Last Will and Testament needs to be witnessed by being signed, during the testator’s lifetime, by at least two persons each of whom being present at the same time, witnessed either the signing of the will or the testator’s acknowledgment of the signature or of the will and understand that the instrument they sign is the testator’s will as explained by Brian D. Lerner. Sometimes, however, explains Brian D. Lerner, the Last Will and Testament is not executed in compliance with these requirements. In these cases, the Last Will and Testament will shall be treated as if it was executed in compliance with the law if the proponent of the last will and testament establishes by clear and convincing evidence that, at the time the testator signed the last will and testament, the testator intended the will to constitute the testator’s last will and testament.
Another type of Last Will and Testament is known as the Holographic Will explains Brian D. Lerner. A holographic will is a last will and testament signed by the testator, with its material provisions appearing in the testator’s handwriting. Brian Lerner states that this type of will need not be witnessed or dated. The testator may sign the will anywhere on the document as long as the signature is made with the intent to authenticate the will. The document must be clearly intended to be a last will and testament and not mere instructions to an attorney regarding the drafting of a proposed witnessed will.
Brian Lerner states that any statement of testamentary intent contained in a holographic will may be part of a commercially printed form will. However, Brian Lerner usually advises a client to write a holographic will entirely in his or her own handwriting. This eliminates the possibility of a later dispute over what is “material” and what is not in the last will and testament.
Although a holographic will need not be dated explains Brian D. Lerner, the last will and testament should always be dated. If the holographic will is not dated and an inconsistent last will and testament exists, the courts will deem the holographic will invalid to the extent of the inconsistency unless it is shown that the holographic will was executed after the other will.Brian Lerner asks why have this problem? If you are going to have a holographic will, then simply date it so there is no issue as to when it is written. Another item to consider cautions Brian D. Lerner is that if the testator lacked testamentary capacity at any time when the holographic will might have been executed, the courts will consider the last will and testament invalid unless it is shown that the testator had capacity when the will was executed.
Brian Lerner states that normally an attorney is not concerned with holographic wills except to review one created by a client who is now interested in obtaining a witnessed will as their last Will and Testament. Nevertheless, states Brian Lerner, an attorney may be asked to draft or dictate by telephone a holographic will in certain circumstances, e.g., when a client is taking an unexpected trip or has to undergo surgery. Brian Lerner again informs that and advises that the client should copy, date, and sign the last will and testament provisions on blank paper in his or her own handwriting.
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Title: There is the Statutory Will for people with simple Estates
Brian D. Lerner, Will Lawyer states that there are several kinds of wills. Two such wills that a will lawyer can prepare is known as an international will and a statutory will. Probate Code §§6200–6243 establish the California statutory will. Printed forms of the statutory will are available from the State Bar of California. Any person may use a statutory will. Thus, Brian Lerner states that any person “of sound mind and over the age of 18” may execute a California statutory will. However, Brian D. Lerner, will lawyer does state that the witnessed will is the most popular. Like other wills, a statutory will may be revoked by dissolution of a marriage or domestic partnership.
The requirements for executing a statutory will differ slightly from those for executing other witnessed wills states Brian D. Lerner, will lawyer. A California statutory will shall be executed only if the testator shall complete the appropriate blanks and shall sign the will and each witness shall observe the testator’s signing and each witness shall sign his or her name in the presence of the testator. Brian Lerner confirms that in the State of California, this is the requirements (at least executing requirements) for the statutory will to be valid.
One item to keep in mind cautions Brian D. Lerner, will lawyer, is that you cannot use a statutory will in conjunction with a Trust. That will simply not work and any serious estate planning will probably not use the statutory will. However, a will lawyer will certainly advise you what is best. It would seem that a statutory will are for those with smaller estates. Sometimes, states Brian Lerner, will lawyer, a person is so old and infirm that he cannot sign the will himself. If the testator is too infirm to physically sign the will or is incompetent, a statutory will cannot be used. There are other wills that can be used in this case.
On one hand, a statutory will is easy to make and it is quick explains Brian Lerner, will lawyer. However, a person dissatisfied with the limitations of the statutory will form may not change, delete, or add words to the form. Any change, deletion, or addition will “be given effect only where clear and convincing evidence shows that they would effectuate the clear intent of the testator.” However, explains Brian D. Lerner, will lawyer, a statutory will may be amended, however, by codicil in the same manner as other wills.
Brian Lerner, will lawyer explains that if the testator’s marriage or registered domestic partnership is dissolved or annulled after a California statutory will has been executed, any disposition of property made by the will to the former spouse or registered domestic partner and any nomination of the former spouse or registered domestic partner as an executor, trustee, or guardian under the will is revoked. Furthermore, states Brian D. Lerner, will lawyer, if the testator’s marriage or domestic partnership is dissolved after the testator executes a statutory will and if the testator remarries or enters into a domestic partnership with a person other than his or her former spouse or domestic partner, a new will should be executed if the new spouse or partner is the intended beneficiary of the statutory will’s spousal provisions.
This is a simple will explains Brian Lerner, will attorney. It is not designed to reduce death taxes or other taxes. Talk to a lawyer to do tax planning, or the current amount excluded from estate tax under federal law at your death, you own business-related assets, you want to create a trust fund for your children’s education or other purposes, you own assets in some other state, you want to disinherit your spouse, domestic partner, or descendants, or you have valuable interests in pension or profit-sharing plans. Clearly, if you have more than a simple will states Brian Lerner, you should talk to a will lawyer who knows about estate planning.