Sunday, July 14, 2013

Will Components


Back again with more thoughts on Estate Planning after completing your divorce.  Several weeks ago, before our discussions on the Prop 8 and DOMA rulings by the U.S. Supreme Court and the digression about Registered Domestic Partners, we started our discussion on  Simple Wills.  This week, I want to lay out the basic parts of a Will necessary to make it complete and valid.

In order for you to have a valid Will in California, you must be in compliance with all aspects of the Probate Codes in California.  While there may be certain exceptions and nuance, generally speaking the laws require that:

-       That you have Testamentary Capacity – meaning you are legally able to make a Will, such that you are at least 18 years of age, that you are mentally Competent to make a Will (which has extensive conditions and qualifications), 
-       That you have Testamentary Intent being the desire to give upon your death,  
-       That you are free from Outside Influence, 
-       That you reduce your intent to Writing, 
-       That you Sign your Will, and 
-    That your signing of the written Will is Witnessed by at least two qualified persons. 

Each of these items have many specific qualifications, that fill up reams of laws, codes and case books, as a result of every conceivable challenge by every aggrieved possible heir, family member, mistress and bastard child.  Life offers endless opportunities and scripts for your favorite Soap, or God Forbid, reality T.V.!

In addition to these structural formalities, like any story, there are other general notions for how a Will should simply make sense.  The Will should have certain opening clauses that identify you as the person making the will.  That you are of sound mind and that you are making it with your own free will.  You should also specifically invalidate or revoke any other Wills that you previously made.  You could identify all known family if any. 

The next segment of clauses in your will should identify your donative intent, that is, that you have stuff and you want your stuff to be handled in a certain way, and that you want it given to specific persons or entities that you chose.  In this segment, you should clearly state the entirety of your estate.  Everything that you have and where it goes.  Depending on what you have, you could/should make separate clauses for each type of property you have and how you want it directed.  People typically have a clause for real property, which is land or real estate, maybe even a separate clause for each specific property, especially if you are fortunate enough to have substantial accumulations.  Other specific clauses might be cash, stock, bonds and other financial holdings.  After that, you might have special clauses for personal property, or the things about the house.  Maybe this is simply disposing of clothing, but it might be furniture, art, antiques, family heirlooms and the likes.  Finally, there should be a Residuary clause, being the catch all clause for anything that does not fall under any other clause or might not be specifically listed elsewhere.  Frequently, this clause saves the clear intent for things acquired after the Will was drafted.

Another specific clause that should be included is the appointment and fiduciary clauses, which identifies who will control your estate and represent your interests after you die.  This is your ability to dictate who, individually, buy group, and even by sequence, who you want to control your final affairs and the disposition of your effects as dictated by your will.

After that, there should be some final clauses considered routine by your lawyer, wrapping up all the formalities and technicalities of your Will.  All of which lead up to the signing off of the complete and final document, being your “Last Will and Testament”.
  
In the blogs that follow, I will begin to address some of the other types of Wills and some of the weird stories. However, if you have any questions, feel free to respond below, or if you are interested in learning more about an Estate Plan, Wills, Trusts, Advanced Healthcare Directives, or Divorce, Custody, Visitation, Child Support, Spousal Support, Property Division, Modifications, Remarriage, or Pre-Nuptial Agreements, please contact me at http://www.fcbegun.com/, fbegun@gmail.com or at http://www.linkedin.com for Fred Begun.