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.
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