Legal Question in Wills and Trusts in California
What constitutes a will?
My father-in-law says he has no will. A couple of years a go he wrote out a document stating that he was naming one of his sons as the Executor of his estate to distribute his estate as the son saw fit. He signed it and the son signed it. This son seems to think that this will allow him to take what he wants when his father dies and not include his other two brothers. He has stated this plainly. Would this document suffice as a will in California or would the estate be considered intestate when my father-in-law passes away? I know the best advice is for a will to be created as soon as possible but the son named in the document would not allow it. Needless to say these family members are not on the best of terms and my father-in-law has dementia. Thanks for your help.
2 Answers from Attorneys
Re: What constitutes a will?
In order to correctly determine whether or not a document constitutes a valid will in California, it would be necessary to review the actual document.
However, several elements are usually necessary for a will to be valid. First, to be recognized as a holographic will, it must be completely in the handwriting of the maker and signed by the maker. Second, the testator must be competent to make a will at the time it is signed. Third, the document must show that the maker intended by it to make a disposition of property at death.
SEE http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=06001-07000&file=6110-6113
Re: What constitutes a will?
Thank you for your question. The correct legal answer is that without looking at the document I cannot determine if it is a will or not. However, based upon the very limited information you gave me, it seems it could be a will if it is handwritten, and not a will if it is typed. Obviously, you should see an attorney to discuss this further.
Good luck, and if you want to give me a call, my telephone number is (408) 268-2580.
Sincerely,
Kai H. Wessels, Esq.
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