I get the question frequently: “Can you please draft my will?” The answer is, “no.” But here is why.
I draft estate plans. The estate plan will contain a will, but the will is just one piece of a much bigger puzzle. When an attorney drafts only a will, the attorney condemns the client to the probate court. Wills must go through probate, there are no exceptions. So any attorney who drafts a will for a client instead of an estate plan has done that client a disservice.
If you need a will, and all you want is a will, you can draft one for free today. Probate Code section 6111 gives citizens of California wide latitude: “A will that does not comply with Section 6110 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.”
This means that so long as the “material provisions” and the signature are in the handwriting of the deceased: the will is valid. The material provisions requirement is important because it means that any California citizen can use a pre-printed form so long as the important parts (generally the “what goes to who” statements) are in the testator’s own handwriting.
So, pull out a sheet of paper, write a date at the top and the words “Last Will and Testament of [Name]” and put your thoughts on paper. Sign the bottom and you have a valid holographic will.
People who want to avoid the costs and headaches of probate will want something more sophisticated. For them, I recommend the full estate plan. The full estate plan includes documents that control what happens both during life and after death. It can even include the testator’s wishes about how death should happen and under what circumstances. A well-made estate plan will include an advanced healthcare directive, appropriate information releases, durable powers of attorney, nominations of conservators, assertions regarding organ donation, a will, and a trust. The trust is what helps your heirs avoid probate and expedite the transfer of your assets in a relatively stress-free manner.
Estate planning incorporates more than just your attorney so that you can maximize the benefit for the people you love. It should contemplate and plan for the unfortunate circumstances and answer the questions: How will my family survive without me? What needs to happen if I’m unconscious? Who will raise my kids if I cannot?
In this manner, the estate plan adds great value to your life by removing stress for the people you care about.
I write these words as the last act of my workweek heading into the Christmas weekend. As you are surrounded by family this weekend, ask yourself some of the questions I asked above, and consider whether you have made appropriate plans in writing to protect them.