A “will” (or sometimes referred as “last will and testament” is a written instrument in which a person makes a disposition of his or her property that takes effect after his or her death. All properly prepared estate plans contain a will, if only a pourover will that transfers to the trust assets that were not transferred to the trust during the client’s lifetime. A pourover will is commonly used to make a transfer by will to the trustee of a living trust. The assets transferred are added to and administered as part of the trust along with its existing assets. In this way, the will “pours over” into the trust.
A will may also be used to accomplish things a trust cannot. For example, a will may nominate guardians for minor children, provide funeral or burial instructions, or exercise a power of appointment. A will remains ambulatory; that is, the testator retains the power to alter or revoke the will during his or her lifetime, so until the testator dies, the rights of devisees are subject to change at the whim of the testator, and devisees have no vested or legally enforceable rights with respect to the will. Of course, the testator’s right to amend or revoke the will is conditioned on the testator retaining the capacity to do so, and modification or revocation of a will by an incapacitated testator is invalid.
A will has no legal authority until after death. So, a will does not help manage a person’s affairs when they are incapacitated, whether by illness or injury. A will does not help an estate avoid probate – rather it is the basic document used by the court in probate. If you were to die without a will, you are said to have died “intestate” and California law will determine how and to whom your property will be distributed. Accordingly, a will is a fundamental component of any estate plan.