A will is the legal instrument that permits a person, the testator, to make decisions on how his or her estate will be managed and distributed after their death. In the past, there was a distinction between the will disposing of personal or real property. Over time the distinction has disappeared so that a will, often called a “last will and testament,” disposes of both real and personal property.
If a person does not leave a will, or the will is declared invalid, the person will have died “intestate,” resulting in the distribution of the estate according to the laws of Descent and Distribution of the state in which the person resided. Because of the importance of a will, the state law requires it to have certain elements to be valid. In addition to these required elements, a will may be ruled invalid if the testator made the will as the result of undue influence, fraud, or mistake.
A will serves a variety of important purposes
It enables a person to select their heirs rather than allowing the state laws of Descent and Distribution to choose the heirs, who, although blood relatives, may not have been the choice of the testator. A will allows a person to decide which individual could best serve as the executor of the estate, distributing the property fairly to the beneficiaries while protecting their interests, rather than allowing a court to appoint a stranger to serve as administrator. Also, a will safeguards a person’s right to select an individual to serve as guardian to raise young children.
A link to the statutory will under Probated Code § 6240 can be accessed here.
Formalities of a valid will
Every state has statutes prescribing the formalities of making a valid will. The requirements relate to the writing, signing, witnessing, or attestation of the will in addition to its publication. These requirements safeguard that the will carries out the real intention of the will maker from coercion and manipulation. It is important that these requirements unique to each state are followed in order to have a valid will.
Pour over will
A pour over will can be used by a person who has already executed a trust in which all property is designated to be distributed or managed upon the death of the person whose possessions are in trust, leaving all property to the trust. A pour over will is a protection which is intended to guarantee that any assets which somehow were not included in the trust become assets of the trust upon the party’s death. A pour over will often provide that if the trust is invalid in whole or in part, the distribution under the will must be made under the same terms as stated in the invalid trust.