The Will and the Pour-Over Will in California

While most of us have a general idea of what a last will and testament is, the details about how to accurately draft a will, or the importance of doing so, are little known facts. As an Estate Planning attorney in The San Francisco East Bay, I frequently draft wills and work with clients to resolve issues relating to wills. Because a Will alone is not sufficient to protect most estates from Probate in California, I typically recommend Clients do a Trust with what’s called a “Pour Over Will.” A properly drafted pour over will is generally a short document that “pours over” any assets into the trust that may have been left out.

Historically a will has been called one’s “Last Will and Testament”. The “will” part technically refers to real property (land, housing, buildings, or “fixed” property), whereas the “testament” refers to “personal property” – or smaller items such as cars, jewelry, etc. However, the terms “will” and “testament” have also been used interchangeably, and the legal community generally uses the term “will” to refer to both types of property – real property and personal property.

There is a secondary purpose and duty of a will: the person bestowing assets should make it as legally simple as possible for those gifts to be passed to their heirs. When there is any ambiguity around the intention of the testator (person who the will belongs to), litigation (the legal jargon for fighting) can occur. How do you make a legal will in California, and when should you enlist the help of an Estate Planning lawyer?

Under California law, any person over the age of 18 and with “testamentary capacity” (of sound mind) can draft their own will. The will can be typed, handwritten, or even fill in the blank (see below). A basic will is fairly simple to execute, however it is estimated that only 30-50% of Americans write wills before they die. California Probate Code (CA law for estates) makes only a few requirements for a valid will.

A valid will is one that will be upheld by the California Probate Court. If you do not put your assets in a trust, they are required to go through the court system if the assets total more than $150,000. Anyone who owns a home in Walnut Creek, Lafayette, San Ramon, Berkeley, or the surrounding East Bay Area is generally well above this level. 

As such, most individuals in California will want to establish a Revocable Trust with a Pour-Over Will to accompany it.

(CA probate code 6110) 

1. The will is in writing and satisfies all of the requirements of California law (California probate code for a valid will)

2. The will must be signed by the testator (person who the will belongs to) OR in his or her name by another under the testator’s direction and also in the testator’s presence, OR by a conservator with a court order.

3. The signing of the will (or the acknowledgement of the signing by the testator) must be witnessed and signed by at least two people at the same time. These two people must also understand that they are signing the will of the testator.

Note: A will may still be valid if these three things are not done, but this becomes more complicated and requires “clear and convincing evidence” to be presented before the court. (CA Probate code 6111)

A will that does not meet the requirements of code 6110 is still valid as a “holographic will” (handwritten will), whether or not it was witnessed, if the material designations (part of the will that bequeaths assets) and the signature are in the handwriting of the person executing the will. 

4. If the handwritten will does not state when it was executed, and if the fact that the date was left off results in doubt about whether or not the “provisions” made by that will or another will are “controlling” (ie legally valid) – then the handwritten will is invalid unless it can be legally established that the handwritten will was executed after the date of the other will. This typically happens when there is an undated, handwritten will that is inconsistent with another will.

5. If the handwritten will does not contain a statement regarding the date it was executed, AND it can be established that the person executing the will (the testator) did not have “testamentary capacity” (as in dementia or other mental incapacity) during the time period when it was likely the will was executed, that will is invalid. (CA Probate code 6113) A will is validly executed if it is compliance with 7, 8, and 9:

6. The execution of the will complies with Probate code 6110 or code 6111 or Chapter 6 of the California Probate code OR Chapter 11 (for International Wills)

7. The will is executed in compliance with the laws of the time and place it is executed.

8. The will is executed in compliance with the laws of the time and place it is executed or the will is in compliance with the laws of the place where the testator dies, has a home, or is a legal national, at the time of their death.

Sound at all complicated?

While an attorney is not required to draw up one’s will, having the assistance of an experienced Estate lawyer can avoid the potential pitfalls of a home-made will. Because the person who drew up the will is, by nature of a will, not available to explain what they meant, or correct any small errors – there is not much room for mistake. 

Once the testator (writer of the will) has passed, a probate proceeding must be done to transfer non beneficiary assets if the person’s estate is worth more than $150,000.00 total. In determining the value of one’s estate, keep in mind that the full value of one’s home is taken into account, not just the equity in the home. If the total assets are below $150,000.00, Small Estate Affidavits can be used to transfer ownership. Small Estate Affidavits are relatively simple and seldom require the assistance of an attorney.

If a full probate is necessary, the probate process will first establish the validity of the will. An executor or administrator will also be appointed to oversee all aspects of the probate. If the will is determined to be invalid, the court may choose to follow the “laws of intestacy” to distribute the assets. If the probate is litigated (ie contested, being fought over), the adverse parties may also come to an agreement regarding distribution. This agreement would be subject to the Court’s approval. Learn more about the Probate Process in California.

The will must also be an original copy. The only way a copy of a will can be declared valid is if the will has been destroyed by accident, and this can be proven. Otherwise, the probate court accepts only originals.