Wills Attorneys in Oakland, California

The creation of a will is a topic that many of us avoid until something happens that triggers us to take action. Perhaps you lost a loved one who was very young. Maybe you experienced a life-threatening health event that made you rethink your future. The COVID-19 pandemic led many younger adults to consider estate planning options, such as the creation of a will. Whatever the case may be, you deserve to be armed with all necessary information to create a will that holds up in court.

If you are exploring options for creating a will, consider working with Davidson Estate Law. We have extensive experience in handling estate and probate matters in the Bay Area. We will approach your estate planning needs with a process that is collaborative and tailored to your unique situation.

Davidson Estate Law serves clients throughout Oakland, California, as well as other cities in the Bay Area, including Walnut Creek, Berkeley, San Francisco, El Cerrito, and Alameda. Contact us today to schedule an initial consultation.

Overview of Wills

The purpose of a will is to document how you want your property distributed upon your death. Examples of commonly inherited assets that are included in many wills are homes and other real estate, motor vehicles, boats and other watercraft, jewelry, artwork, and money in bank accounts. A will should identify the name of the person (called an “executor”) who is to oversee estate matters to ensure property is distributed in accordance with a will.

Under California law, a will must meet the following requirements to hold up in court:

• The will must be in writing;

• The will must be signed by one of the following:

  • The testator (the person creating the will);

  • Another person in the presence of the testator and at the testator’s direction (which may be necessary if the testator is unable to physically write); or

  • A conservator in accordance with a court order to create a will under California law; and

• The will must be signed by two witnesses who (1) are present at the time the testator signs the will or present at the time the testator acknowledges he or she signed the will, and (2) understand that they are signing a will.

Estate planning is a confusing topic no matter where you live. California has especially strict laws, so understanding what steps you need to take to adhere to California law is important during the estate planning process.

Types of Wills

Examples of different types of wills that may be available to you include the following:

• Testamentary Will: A common choice for many Californians is a testamentary will. This legal document is used to transfer holdings in an estate to other people or organizations upon the testator’s death.

• Joint Will: A joint will is much like a testamentary will except that the will involves two people (usually spouses) who wish to leave their property to one another upon each other’s deaths. A joint will cannot be revoked after one party to the will passes away.

• Pour-Over Wills: Pour-over wills can be used with a revocable living trust. As the name suggests, a pour-over will allows you to pass property through the will and into your trust upon your death. There are advantages to using a pour-over will with a living trust, such as privacy and the ability to distribute assets that were not initially in your trust in accordance with your wishes.

Why Having a Will Is Important

Probate is the process of validating the legality of a will. In some cases, probate may be avoided if minimal assets are involved. However, when dealing with assets of a certain value, probate is needed to ensure a will is not fabricated and that it meets all requirements under California law.

If you pass away without a will, you are leaving your affairs in the hands of California state law. Passing away without a will is termed dying “intestate.” Probate is a necessity when you pass away without a will if you have assets subject to distribution. If your wishes are not documented in a will, a judge is guided by California statutes that identify who gets what property and in what order.

While California law mimics the choices many people make when writing a will in terms of who should receive your property, not every situation is the average situation. In some cases, a spouse may be estranged for years, but still inherits all of one’s assets in accordance with the law. By having a will, you are not leaving any questions open as to how you want your property distributed.

Differences Between a Will and a Trust

A will is a legal document that directs how the assets of your estate are to be distributed. A trust is a fiduciary relationship whereby one party manages the assets for the benefit of another. For example, a will may direct that a trust be created for the benefit of minor children. A trust may contain funds that are distributed in payments over a period of years. A trust identified in a will is termed a testamentary trust.

A living trust is a common and popular way to avoid probate. A living trust is created during your lifetime and can be modified or revoked prior to your death. Upon your death, property held in trust will automatically transfer to a beneficiary without the intervention of the probate court.

A pour-over will, as discussed above, takes into account a written legal document that provides instructions for the transfer of property upon death that is not already in a trust. Wills and trusts are complicated matters, but they should not scare you from meeting your estate planning goals.