In the public, the most well known document in estate planning is the will. However, thanks in large part to television and dinner table chit chat, most people do not know a great deal about the realities of wills and a lot of what they think they know is wrong.
First, some important terminology. The testator is the person who makes the will, either on their own or through an attorney. A gift is any personal, including cash, or real property (land) that is given to someone in the will. A beneficiary is a person or entity that receives a gift in the will.
In California, the three most common types of wills are (i) those drafted by an attorney, known as a Formally Attested Will or FAW, (ii) those drafted by the testator, known as a holographic will or holo and (iii) those drafted by the testator using a form created by the California government, known as a statutory will. There are other types of wills, but they are simply not as relevant as these big three, which can actually be narrowed down just to the big two, FAW and holo.
Formally Attested Will (FAW)
A formally attested will, a will drafted by an attorney, has the most requirements in order for it to be considered valid. The will must be in writing, this means no electronic media. The will must be signed, there are three ways to meet the signing requirement. The will must be witnessed by two witnesses, some states require three.
Although, there is only a requirement of two witnesses in California, many California attorneys will have three witnesses present in order to insure that the will is valid in other states.
Holographic Will (Holo)
A holographic will needs to be signed by the testator and the “material provisions” (California Probate Code section 6111) need to be in the testator’s handwriting. Also, although not a requirement, it is best that the will be dated, this will simplify matters later.
What are the “material provisions”? Generally, the beneficiaries and the gifts, or simply, who gets what.
The California legislature has kindly created a form will that can be filled out by the testator and works similarly to a holo will. The advantage to a statutory will over a holo will is that the testator does not have to figure out what to include in the will since they are filling out a form.
Which Type of Will to choose?
This is a difficult question to answer generally. However, if you have a small estate, very small, and the ability to fill out a form or handwrite a will, then a holo will may be the best and cheapest option.
On the other hand, attorneys generally do not only draft a will for an estate plan. Estate planning has several other documents involved. This is relevant, because if you want to avoid probate, read here to see why I highly recommend doing just that, then a will is not enough.
Information on this site was believed to be correct at the time of posting. Also, readers should be careful about relying on any information found online. Please consult a lawyer to ensure accurate compliance of the law within your jurisdiction.