prepare a will

What Constitutes a Will?

The contents of a typical will could include:

*The deceased’s real estate holdings
*Stocks and bonds
*Cash or cash accounts
*A life insurance policy
*Pension benefits, death benefits
*Personal belongings
*Bank account funds or funds with any financial institution, and retirement accounts.

Probate is legal term that refers to presenting a will to the probate court by filing a probate petition to kick-start probate hearings. A will is probated through a specific process. But does a will have to be probated in every single case? Is it important to consider the basics of probate?

The California probate court proceeding makes sure all the testator’s (deceased person’s) unpaid debts receive a full settlement. This happens before the distribution of assets to beneficiaries. If a valid will is probated, the transfer of estate assets follows the terms of the will.

If you probate an estate without a valid will, the California state law will specify who gets the assets of the estate after the entire process of probate. However, some procedures for estates are set up so that some or all assets can entirely bypass probate. So, does a will have to be probated?

What Makes a Will Valid in California Probate?

Estate planning seeks to make the life of those you leave behind easier at your time of death. Therefore, you must exercise this streamlined process with care. Ensure the estate plan doesn’t have any errors to affect its validity. The ultimate goal is to have an adequate and comprehensive estate plan.

Here, we will take a look at what makes a will valid based on the type of property. Under California Probate Code section 6110, a will becomes valid to California probate if it’s drafted and executed in the following way:

A will must be in writing: A will must be in writing to make it valid. You can make it hand-written or typed. Making changes to a written will can result in possible legal challenges if the changes don’t follow the law.

For example, if you make changes to a will by crossing out parts or adding new sections by hand, someone may challenge the validity of the changes. Such a challenge could result in the invalidation of the will. It’s best to completely make a new will instead of making handwritten changes.

A will must provide elaborate information regarding the distribution of assets to beneficiaries: You must include all the distributable estate assets in the will. Also, the testator should outline how to subdivide the entire estate among the list of people identified. The person in charge of diving the real property (executor) will also determine the types of assets to get subdivided.

In case the testator doesn’t provide an accurate will, the law allows the use of an estate affidavit in the transfer of property to potential beneficiaries. This mostly applies to simple estates.

A will must be signed and dated by the testator: The testator (person making the will) must have at least 18 years and a “sound mind” when signing the will. Of “sound mind” means that a person has the legal capacity to think, reason, and understand for oneself. Such a person can clearly define their financial accounts and outline their revocable trust.

If a person can’t perform any of these things, someone can challenge their will in a formal probate process. A testator must have a sound mind when making and signing a will since it enables them to state how their personal property will get allocated to their heirs.

Nevertheless, a diminished mental capacity does not necessarily prevent someone from creating a will. When writing the will, the testator must also identify a personal representative, with whom they will delegate their revocable living trust.

The personal representative will carry out the fiduciary duty of ensuring the even distribution of probate assets among heirs. This must conform to the legal process regarding the subdivision of a probate estate.

A will must be signed by witnesses: The California probate law requires at least two people approved by the deceased person to sign the will.  Each witness must avail themselves at the time, witness the signing of the will, or the testator’s acknowledgment of the signature, and acknowledge that what they’re signing is, in fact, the testator’s will.

The witnesses must also sign an affidavit acknowledging the testator’s mental capacity. This helps reduce future incidences where the probate property gets categorized as intestate estate following the unavailability of a will.

A will must identify beneficiaries: You must do careful planning when writing a will since the law will transfer ownership of the estate property to any person or business that the will-maker has chosen. You must identify all gifts of property to ensure the validity of the will during the California probate process.

Also, you must clearly state any information regarding beneficiary designation. Since it’s a mandatory probate procedure to determine the rightful heirs, the testator should put this into consideration. With a clear description of the beneficiaries, the transfer of assets becomes convenient. Therefore, the will has great significance during the probate process.

Does a Will Have to Be Probated? The California Probate Process Validates a Will


Does a Will Have to Be Probated?

It’s important to check your will when certain life changes occur. For informational purposes, this helps in making sure that you update every aspect of the will. However, a probate attorney isn’t required in such scenarios. Also, the legal proceedings during probate may greatly get affected if the will has no grounds for validity. The following life changes could result in the invalidity of your will:

Divorce: If the testator gets divorced, this can impact the validity of their will if they had planned to give part of their estate to their spouse.

Joint ownership/joint tenancy & living trust: If you have a jointly-owned property with your spouse, or hold ownership of property as a joint owner or joint tenant in a living trust with rights of survivorship, there’s no need for a will during probate.

Mental capacity: If your mental capacity diminishes over the years, and you make changes to your will, someone may challenge it during California probate because you did not have the mental capacity. The person in possession of the will must have a sound mind and judgment.

Who Validates the Will?

The California courts for probate validate a will during the formal probate proceeding. The court will make the final decision on whether a will is valid, legal, and binding. This may result in a lengthy probate process at times. Does a will have to be probated? As mentioned above, if your will becomes invalid, your estate will pass through intestacy and be administered according to California intestacy laws regarding intestate succession.

For example, a surviving spouse could receive all the decedent’s community property and part of their separate property. The remaining separate property would go to children, grandchildren, parents, grandparents, siblings, nieces, etc. The deceased’s life insurance proceeds and brokerage accounts won’t go through probate. These factors could make the probate a complicated process if included.

Get Help Preparing Your Will

When writing and signing your will, make sure it’s valid to prevent the laws of intestacy from determining the distribution of your estate through intestate succession. You may even want to design it so your beneficiaries can avoid the expensive process of probate administration. Contact A People’s Choice for legal help in drafting your valid will to California probate.

Get help with your California will today!

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