Simple Will
Pour Over Will
Holographic Will
For centuries, wills have been the basic instrument used to dispose of a person's estate after death. Despite the inclination to use revocable trusts as a substitute of a will, wills remain a fundamental tool of estate planning.
A will is a legal document by which a person disposes of his or her property, to take effect after his or her death. A will helps avoid disputes between family members after your death and permits you to choose your beneficiaries. Although after death disposition of property is one of the primary functions of a will, a will may also accomplish other purposes. For example, with a will an individual can leave directions respecting the disposition his or her remains, to exercise a power of appointment, or to nominate a personal representative (executor) or a guardian for minor children. A negative aspect of a will is that it does not avoid probate.
A requirement of a will is that it be witnessed. In the state of California, a will must be witnessed by at least two persons, each of which must be present at the time the creator of the will is signing. A witness must be competent and should not be a beneficiary. A will that is not witnessed may still be valid as a Holographic Will. (see below)
A will is a traditionally performs the following functions:
Names beneficiaries of your estate who will receive your assets after your death
Nominates an executor who will be appointed and supervised by the probate court to manage your estate; pay your debts, expenses and taxes; and distribute your estate according to the instructions in your will.
Nominates guardians for your minor children.
TYPES OF WILLS
Simple Wills
A Simple will is simply the will described above. It is commonly used by estate planning attorneys for estates below $100,000 because a formal probate proceeding will not be required.
Pour Over Will
A pour-over will works in concurrence with a Living Trust and is commonly used to make a transfer by the will to a living trust. The main purpose of a pour over will is to transfer an asset which one overlooked to fund into the trust. The assets transferred by the pour over will are added to the trust and administered pursuant to the trust terms with the existing trust assets. Technically, the will "pours" the asset or property into the trust.
If the value of the assets being transferred to the trust by the pour over will do not exceed $100,000, the trustee may be able to fund the trust without a formal probate proceeding. However, if the value of the assets which were not funded into the trust exceed $100,000 a formal proceeding would likely be required. (See Trust Funding)
Holographic Will
A Holographic Will is a will which is handwritten and signed by the creator of the will. A holographic will is recognized by the California Probate Court, however they are often disputed for validity. Holographic wills are usually prepared without the help of an attorney, so they are often unclear in many respects. Holographic Will's are not recommended because of the likelihood of a dispute and the hurdles required to prove that the handwriting it that of the deceased.
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