Joined: 31 Jan 2005
|Posted: Thu May 22, 2014 4:23 pm Post subject: Wills Lecture
WHAT IS A WILL? A Declaration how a person wants
property distributed upon death. CALLED: Testamentary
deposition of property.
Maker called: Testator (MALE) or Testatrix (FEMALE).
Persons designated to receive the testator's property
REQUIREMENTS FOR MAKING A WILL EACH STATE HAS THEIR OWN
STATUTE OF WILLS WHICH IS PARTICULAR TO THE STATE
ENACTING IT: ALL REQUIRE: TESTAMENTARY CAPACITY I.E.:
Must have been of legal age and "sound mind" when the
will was made. Determine testamentary capacity: Caseby-
If the person dies w/o the benefit of a will, they are
said to die intestate and their beneficiaries are
determined by State Statute. Each state has their own
schematic as to who receives the property of a decedent
who dies intestate. If no living relative survive the
state gets the estate by way of ESCHEATING to the
Legal age: Age of Majority. AND
Sound and disposing mind.
Ca.: Statute of Wills establishes requirements: Two
types of wills: FORMAL & HOLOGRAPHIC (self written)
FORMAL WILLS: Must be:
SIGNED at THE END. To prevent fraud.
Not a requirement, but good practice
to: Put initials on the bottom of
each page. Purpose: To prevent
fraud. E.G.: Could occur if someone
added provisions to the will below
the testator's signature.
Courts: Initials ("R.K.H."), a nickname ("Buffy"),
even an "X" is a valid signature on a will if it
can be proven that the testator intended it to be
his or her signature.
ATTESTATION BY WITNESSES. Ceremony wherein the Will
must be attested to by mentally competent
witnesses. California: Requires Two; in my
practice: I USE Three. Interested parties (e.g.,
a beneficiary under the will should not be one
of the witnesses. Witnesses usually sign
following the signature of testator/trix.
ALL signatures must be affixed during this
same “ceremony” and must be all seen by the
others. The attorney makes a statement as
part of the ceremony making sure that all
present hear that the testator/trix knows
what the document is that they are signing
and that it reflects their wishes. Ceremony is
called THE ATTESTATION CLAUSE.
INFORMAL WILLS: Called: Holographic wills.
The writing must be:
1. ENTIRELY IN HANDWRITING OF TESTATOR,
2. ON PLAIN PAPER (With ABSOLUTELY NO EXTRANEOUS
MARKINGS ON THE PAPER, e.g.: notarization destroys the
3. SIGNED (Anywhere in the body of the document);
CODICILS: ADDITIONS/AMENDMENTS TO THE WILL. Used less
frequently with the advent of the computer age; it’s
much easier to just draft a new will.
REVOCATION OF A WILL:
A subsequent will “updates” or revokes a prior will.
Revokes it in regard to any conflicts in new will.
Destroying it or marking “void” on it also revokes a