11th Dec 2013
A valid will prepared with the assistance of an experienced estate planning lawyer will give the testator (the person who executed the will) peace of mind because he/she is assured that their estate will be distributed to the beneficiaries that are designated. Dwight Tompkins, an experienced Orange County wills attorney, advises that the beneficiaries still have an attorney on hand when the testator dies.
The key word here is “valid,” will, because it is possible for some wills to be deemed invalid. In other words, when the testator passes away, it may not necessarily be smooth sailing for the beneficiaries awaiting their share of the inheritance. A third party may still challenge the validity of the will.
In California, there are a number of elements that need to be satisfied in order for a will to be valid. First, the testator must be of legal age (18 years old and above). Second (and more importantly), he/she must be mentally sound at the time the will was executed. Third, he/she must not have been under duress when executing the will. All of these elements lead to a person who fully understood what they were doing, and affirms his cognition by signing the document in the presence of witnesses.
It is not necessary in California for a will to be a typewritten or computer-printed document. Even a will that is handwritten by the testator may be valid. In such a will, however, all the material provisions in the will must be handwritten by the testator. The signature of the testator must be present on the will. Generally authenticating the handwriting of a will is a challenge and might require the help of an attorney.
An individual can get a formal document from the California State Bar. For people with very modest estates, such forms are sufficient. They only have to fill in the appropriate spaces, affix their signature, have two witnesses sign the will and have the document notarized. For people whose estates have a larger value and whose financial and personal circumstances may be more complicated, a customized will prepared with the help of an estate planning lawyer may be the type you need. These formal wills must be notarized and have the signature of the testator with two witnesses.
There are also provisions governing witnesses. The testator of course cannot be a witness to his own will. Moreover, neither a beneficiary nor any individual with an interest in the estate can act as a witness. The testator affixes his signature in the presence of the witnesses.
As an Orange County wills attorney, I know that there are numerous items in a will which may be the subject of a challenge. The testator may have been assisted by a professional estate planning specialist, but this is not a guarantee that it will not face legal challenges. Therefore, it is essential that the beneficiaries have a lawyer ready to face possible legal challenges.