Definition of Last Will and Testament in California
Definition of Last Will and Testament in California
There are only two lasting bequests we can hope to give our children. One of these is roots; the other, wings.
- W. Hodding Carter
A will or testament is a legal document that declares the distribution directives of the person or the testator's property at death. It also contains the person who will manage his estate and has the authority to distribute the property of the testator upon his death, as written on his will or testament.
A sound mind and a legal age are the requirements for any person to create his or her own will and testament. Other than these, additional requirements may vary depending on the jurisdiction but as general may consist of the following requirements:
• There should be a clear identity of the maker or the testator writing the will and that he is making a will. This "publication" should include the typical words like "last will and testament" on the face of the document.
• All previous will and codicils should be revoked by the testator, in order for the subsequent will to be fully in effect.
• The testator must demonstrate his capacity to freely and willingly dispose his property without question as to the soundness of his decisions.
• There should be two disinterested witnesses when the testator signs and date his will. Extra "supernumerary" witnesses should be present in case there is a question, like an interested party conflict.
• Witnesses that are designated to receive a property under a will can, in some cases, invalidate their status as a witness. A growing number of states in the U.S. declares that an interested party cannot be made into a witness only on the clauses that benefits him or her.
• The signature of the testator should be place at the end of the will. Any text that follows after the testator's signature will be ignored or can be declared invalid.
• All the beneficiaries should be clearly stated in the will. Some jurisdiction allows a valid will that revokes the previous one, revokes a certain disposition or names an executor.
Types of Will
• Nuncupative (non-culpatory). This type of will is use by sailor and military personnel. It can be in oral or dictated form.
• Holographic. The material terms and signature of this type of Will should be done using the handwriting of the testator himself.
• Self-proved. Affidavits are affixed of subscribing witnesses to avoid probate.
• Notarial. This is prepared by a civil-law notary. This is a will in public form.
• Mystic. This type of will is sealed until death.
• Serviceman's will. This is an informal will done by a person in active-military duty.
• Reciprocal /mirror/mutual/husband and wife wills. Two or more parties are involved in making wills that has identical or similar provisions in favor of each other.
• Unsolemnwill. The name of the executor is unknown.
• Will in solemn form. Signed by witnesses and testator.
International Wills
International wills refers to the will made anywhere by any person of any nationality. International will seek to be recognized and proven valid in every country which was ratified or ascended during the international convention held in Washington DC. This convention that occurs in 1973 provided a universally recognized code for wills not made locally. That gathering was open for signature and was called "convention providing a Uniform Law on the Form of an International Will".
Probate
Probate proceeding is initiated in court when the testator has died in order to determine validity of the created will or wills of the testator. A witness will be called in order to testify or sign a "proof of witness" affidavit.
In a self-proving will, statutes have to be provided during the execution of the will. Witnesses' testimony may be forgone during the probate. If the will is proven invalid during the probate, the inheritance will follow the laws of intestacy, as if the will is not existing or never been drafted. Around 30 days is the time limit as to the proving of the will or probate. Only the original will can be admitted to undergo probate in most jurisdictions.
Revocations
The testator can revoke the will he made through physical destruction or by deliberate burning or tearing the document. Striking out his signature can also be a sign of revocation of the will. Partial revocation is allowed where the crossed out part of the document is considered revoked. The testator can also revoke the physical act of another when done in his presence and other witnesses. A will can be considered invalid or does not exist if it is found to be mutilated or has disappear after the death of the testator.An execution of a new will by the testator will invalidate previous will. Most courts will compare and read both wills together before deciding on the validity and consistency of the will. Complete revocations of a will can revive the next most recent will. Revocation can also mean that the testator has no will thus his heirs will inherit through inherit succession.
Dependent Relative Revocation
Dependent relative revocation (DRR) is an equitable doctrine in which court may disregard a revocation that was based on the mistake of law on the part of the testator as to the effect of the revocation. This doctrine will be applied by following the requirements of the courts. First, there should be an alternative plan as to the disposition of the property. Second, there should be clear and convincing evidence of the testator revoking the will. It can be done in terms of a revoking instrument.
Election under the Will
This refers to the probate statutes that permit the surviving spouse to choose to receive a particular share of the deceased spouse which is not written in the will but will be given in lieu of the specific share stated in the will.