What Is a Will and Why Do You Need One?

For many people, creating a will is the first thing that comes to mind when they think about estate planning. Although estate planning involves far more than just drafting up a will, a will is necessary to carry out your wishes with as little conflict and excessive financial burden on your survivors and loved ones.

This article will explore why you need a will, explained by estate planning attorneys. It will discuss what is included in a will, what does a will do, and how is a well written. If you have additional questions or concerns, or would like to speak with a knowledgeable Northern California estate planning attorney about preparing a will, the legal team at Barr and Young offers a free consultation.

What Is a Will?

A will is a legal document that says who will get your belongings, including your money after you die. It is essentially a set of instructions and can include designated guardians for minor children (or adult children with special needs). Although most will follow standard formats, some have special provisions for unique situations, which may or may not be legally enforceable. A will’s custodian (person in possession of the will) or executor is required to file a will after death, within 30 days. The will must be filed in the county where the deceased person lived.

Why Do You Need a Will?

When actor Chadwick Boseman passed away in 2020, he joined a long list of famous people who have passed away without a will, including Abraham Lincoln, Pablo Picasso, Jimi Hendrix, Prince, and Aretha Franklin. Not having a will is surprisingly common; a 2022 survey published by Caring.com established that only 33% of Americans have a will or living trust — with many people saying they don’t believe they have enough assets to leave behind.

We are often asked when do you need a will? Technically, you do not need a will until you are no longer alive. However, because it is entirely impossible to predict catastrophic accidents or sudden health events, you need a will if you are married, have children, or have assets. Even if you have a relatively small estate, having a will allow you to decide what happens with your assets — not the court system. That is in essence, the purpose of wills.

Here are some of the most important reasons to have a will:

• You control who inherits your property. Without a will, state intestacy laws dictate how your assets are distributed, which may not align with your personal wishes.
• You can name a guardian for your minor children. This is one of the most critical functions of a will, allowing you to choose who you trust to raise your children.
• You choose an executor to manage your estate. You can appoint a trusted person or institution to be responsible for gathering your assets, paying debts, and distributing the remainder to your chosen beneficiaries.
• You can minimize potential family conflicts. A clearly written will leaves little doubt about your intentions, reducing the likelihood of disputes and legal challenges among your loved ones during a difficult time.
• You can provide for friends, unmarried partners, or charities. State laws typically only provide for legal spouses and blood relatives. A will is the only way to ensure that other important people or causes in your life receive a part of your estate.
• You can make specific gifts and arrangements. A will allows you to leave specific items — like a family heirloom, a car, or a piece of art — to specific people and even name a caretaker for your pets.

Types of Inheritance Wills

Hollywood loves to use various types of will documents as dramatic plot devices, such as the reading of the will in Rain Man. In real life, the executor or estate attorney will often send a copy of the will to individuals entitled to receive a copy (as well as a copy of the trust, if there is one).

People writing their initial will often ask what type of wills are there. Wills can take many forms, which may or may not be legal.

Written, Witnessed Wills

Typed up, written wills, signed by witnesses, are the most common type of will. This is the kind of will that an estate planning lawyer will prepare.

Handwritten or Holographic Wills

A holographic will is a will written out entirely by hand and signed, without a witness. Although technically legal, holographic wills are more often challenged for their validity because they are not witnessed by anyone.

Oral or Nuncupative Wills

Oral or spoken wills are not valid in California. California Probate Code § 6110 requires wills to be in writing.

Pour-Over Wills

A pour-over will is a legal will that supports trust. It is a catch-all or backstop instrument that “pours over” a decedent’s entire assets into a trust. This can include assets that are acquired after the execution of a will, or accidentally left out.

Joint Wills or Mirror Wills

Joint or mirror wills are simply wills shared by married partners. The wills are nearly identical and “mirror” each other because their wishes are the same. For example, A married couple with children each wants to leave their assets equally to their surviving spouse and children.

Living Wills

A living will is not technically a will — it is an advance health care directive that states your wishes should you not be able to make healthcare decisions due to incapacitation. It is not the same as a health care power of attorney. It is called a living will because it is used while you are still alive.

What Is Included in a Will?

The requirements of a will are established in California Probate Code § 6110. Typical elements of your will include the identification of:

Executor

Your executor is the individual you designate to carry out your will — from selling assets to handling debts and paying taxes. It is possible to have two executors (co-executors) but generally, one designated individual is sufficient and ensures there are no disagreements between executors. An adult child is a common choice for an executor. The California Probate Code has a reasonable fee schedule for the payment of executors.

Beneficiaries

Your beneficiaries are any individuals or charities you wish to receive your property. It is best to be as detailed as possible to avoid dispute or confusion.

Guardians

If you have minor children your will is the place to designate a guardian who will take on the significant emotional and financial burden of raising your children. You can also make provisions for care for your pets and any future pets you may have (although pets are technically property, in the state of California).

Gifts

You will also establish what each of your beneficiaries receives. What is included in a will is entirely up to you but should include all of your assets. These gifts could be a percentage of your estate or a dollar amount. Your beneficiaries can be individual people or charities.

Common Types of Inherited Assets

If you have an asset that you want to leave to a named beneficiary in a will, you should list it in your will (unless you have a trust). You can put your instructions in a will for distribution of many different types of property in a will, including:

There is increasing attention around digital assets, and access to accounts. For example, a popular influencer/blogger could earn thousands of dollars in income from Google Ads on their website. If they wish to transfer the website (and stream of income) after their death, they will need to make provisions for that.

Loyalty points for airlines, hotel chains, and rental cars can be worth thousands of dollars. It is important to review various loyalty policies because some programs may not allow transfer after death, in which case the executor would need the decedent’s login and password. One thing to keep in mind: In today’s era of two-factor authentication, login and password information may not be sufficient.

What Is Not Covered in a Will?

A will can instruct your loved ones and families on what to do with the majority of your assets. However, there are certain assets that a personal will (and the probate process) does not cover:

• Life insurance policies: These may have been obtained from insurance companies, credit card companies, employers, or the military — and will designate a beneficiary or beneficiaries. 
• Retirement plans: 401(k)s, traditional, ROTH, or SEP IRAs will designate a beneficiary. 
• Bank accounts registered as pay on death: these accounts indicate who is supposed. 

• Interests in property held in joint tenancy: Ownership in real estate, automobiles, or stocks held in joint tenant ownership will automatically pass to the survivor upon the death of one of the tenants (note, this IS a taxable event). 
• Assets held in a trust: A trust will cover all assets that have been transferred to the trust. 

You cannot use a will to transfer assets that you own in joint tenancy with someone else. 

Wills vs. Trusts

While people often use the terms interchangeably, it’s crucial to understand that wills and trusts are fundamentally different legal tools. A will, for instance, does not bypass the court-supervised process known as probate. However, a will is the essential document you must have if you need to appoint a legal guardian for minor children.

In contrast, a trust is specifically designed to allow your estate to avoid probate. This provides another significant benefit: privacy. Since wills must pass through probate, they become public court records. Trusts, however, remain confidential documents, though your beneficiaries and legal heirs still have the right to review a copy.

What Happens If I Don’t Have a Will?

Passing away without a will, or dying “intestate”, means you have no say in what happens to your property. The state of California will distribute your assets based on its succession laws, which can lead to significant problems that don’t reflect your actual wishes:

• Forced sale of assets: The state’s method of dividing an estate between a spouse and children can force the sale of property, including the family home, to ensure a legally mandated split.
• Unintended heirs: The law prioritizes legal relatives. An unmarried partner or fiancé would likely inherit nothing, while your estate could go to your parents or other family members you didn’t intend to provide for.
• Loss of control: Ultimately, dying intestate means the court — not you — gets the final word on your legacy.

How Is a Will Written?

Setting up a will is not particularly complicated, and a will may only be a few pages long. The process of writing a will involves:

• Accounting for your property and assets. 
• Deciding who you want to leave your property and assets to (beneficiaries).
• Select an executor to distribute your assets and handle your estate.
• Selecting a guardian for minor children or children with special needs.
• Writing your will. 
• Signing your will in front of witnesses.
• Storing your will in a safe place. 

What About DIY Wills — Making a Will Online?

While DIY will services like LegalZoom or Quicken WillMaker may seem tempting, virtually all estate planning attorneys caution against using these template-based solutions. Although hiring a licensed attorney represents a greater initial investment, it is the most reliable way to safeguard your assets and ensure your loved ones are protected. This professional guidance is especially critical if you anticipate your will could be contested or if your wishes involve complex decisions, such as disinheriting a spouse or child. In those cases, the expertise of an experienced estate planning attorney is non-negotiable.

Conclusion

After you’ve worked hard for your assets, a will can ensure your wishes are carried out after you pass away, and painful and expensive litigation is avoided. If you would like to speak with a Northern California estate planning attorney about drafting a will, contact Perry Morgan Attorneys for a free consultation.