Wills & Trusts

The following are answers to some of the questions most frequently encountered by the attorneys at the Campbell Law Offices regarding wills, trusts and estate planning in California.  With offices in Oakland, the lawyers at the Campbell Law Offices provide comprehensive estate planning services, including probate and trust administration, for clients in Alameda County and throughout the Bay Area, including Berkeley and Walnut Creek.

If you have other questions or require specific advice or assistance with the creation of a will or trust, contact the Campbell Law Offices to speak with one of our attorneys.

Q.  What is required for a will to be valid?
A.  In a nutshell, the maker of the will, known as the testator, must be at least 18 years old and be of sound mind, or mentally competent to make a will.  This test of testamentary capacity is met if the individual is able to understand the nature of the act of making a will, appreciates the extent of his or her estate, and knows the family members and others whose interests will be affected by the will.

Furthermore, the will must be signed by the testator or by another person in the presence of the testator at the testator's direction.  It must also be signed by two witnesses at the same time who witness the testator's signing or the testator's acknowledgement of the signature.  The will can only dispose of certain property, such as the testator's separate property and one-half of any community property the testator owns.  An attempt to dispose of the other one-half of community property is not valid.

A holographic will is a handwritten will which is not witnessed.  To be valid, all of the material provisions must be in the testator's handwriting, and the writing must be legible and clearly state what is being left to whom.  Ideally, the will is also signed and dated by the testator.

Q.  How is the validity of a will challenged?
A.  A will may be challenged, or contested, based on an allegation that the above procedures were not followed, or that the testator lacked testamentary capacity.  Allegations that the will was signed under duress, fraud, or undue influence are also common bases for will contests.   Sometimes, there may be more than one will, with changes made to one will and not another, and it is unclear whether one will was revoked or revived or which will should be admitted to probate.  All of these questions may be raised and litigated during the probate process, before effect is given to any one will.

Q.  What is the difference between a will and a living will?
A.  A living will is not a document which transfers your estate to your heirs when you die.  A living will is a directive about how you want medical decisions to be made on your behalf if you are unable to make them, such as whether you want to be put on life support or to be resuscitated if you are in a coma.  In California and other states, living wills are known as Advance Health Care Directives.  A Durable Power of Attorney can also be executed giving another person the power to make financial decisions on your behalf if you are unable to communicate your desires.

Although not directly related to distributing your estate after death, Advance Health Care Directives and Durable Powers of Attorney are important components of a comprehensive estate plan and should be considered during estate planning.

Q.  Do I need to have a will as part of my estate plan, or should I just use a trust?
A.  While you will probably want to use a trust as the central document in your estate plan, the will is still an important component of an estate plan.  With a will, you can be sure that your entire estate will be distributed in accordance with your wishes.  Even if your intention is for your assets to be distributed as instructed in your trust, your trust only covers those assets which are titled in the name of the trust.  A will may be used to transfer, or "pour over," any assets not otherwise distributed into the trust. 

A will provides peace of mind for you and your family that they will be taken care of.  Through a will, you can appoint a guardian to care for your minor children or manage the children's assets left to them in the will until they become 18.

If you die without a will, any property not otherwise distributed in accordance with a trust or other mechanism will pass to your heirs, your next of kin, or to the state, according to the laws of intestate succession, which may or may not be in accordance with your wishes.

Whether to use a will or a trust or some combination of the two is a matter to discuss with your attorney, based on your goals and objectives and the size and complexity of your estate.

Q.  Is a living trust different from a testamentary trust?
A.  A testamentary trust is a trust that is created in a will.  A living trust is created during the grantor's lifetime.  Unlike a living trust, assets in a testamentary trust do not become part of the trust until after the grantor's death, and probate administration of the will is required.

Q.  Once assets are transferred to the trust, do they belong to the trust permanently?
A.  A revocable living trust is just that, revocable.  At any time during the grantor's lifetime, as long as the grantor has sufficient legal capacity, the terms of the trust can be altered, a different trustee can be named, or the trust can be canceled altogether. 

Q.  What benefits does a trust provide over a will?
A.  To learn about the benefits a trust can provide, see our page on Trusts.