The First Pillar: The Will

What is a Will?

A valid will is a legal document that outlines the distribution of assets after death, names the executor, and nominates guardians for minor children. Not all assets pass according to the will. Many assets such as life insurance and retirement plans pass according to named beneficiaries. Other assets pass according to the type of ownership, such as joint accounts and jointly held real estate. The will is used to pass assets that do not have named beneficiaries or are not jointly held. Essentially, the will states what you own and who you want to have it (or not have it).

Who is named (or nominated) in a Will?

The will should name an executor to enforce the will provisions, beneficiaries to receive assets, and guardians for any minor children.

The Executor

The executor is the person who gather’s all the property records, works with the probate court and attorney, pays the debts and taxes for the estate, and distributes assets to the appropriate parties.

The Beneficiaries

The beneficiaries are the people who receive the assets distributed from the estate.

The Guardians for Minor Children

The guardians are the person or people who should take care of minor children and manage the assets left to care for minor children. It is vitally important to note that guardians are nominated in the will and nominated guardians are still subject to a court mandated background check to ensure the safety of children.

What makes the Will valid?

Do not make the mistake of simply scribbling something down or relying on a form you find online. A will must meet the following specific “formalities” to be valid and enforceable in California:

  • You must be at least 18 years old and mentally competent.

  • You may handwrite a will known as a “holographic will,” but it is best to type the will.

  • You must sign and date the will.

  • You must have two individuals who do not inherit under the will both witness and sign the will. (This step is often missed.)

  • It is generally advisable for the witnesses to sign a document called the “self-proving affidavit” that will need to be notarized, however this is not a requirement.

Continue: What is a Trust?