Identifying and Understanding Different Will Types
By William C. Mason, III, Of Counsel
California wills come in several different forms—attested, statutory, holographic, and pour-over. These different types of wills are all similar in that each is a testamentary document (1) created and executed by an adult of sound find; (2) which makes a disposition of property to individuals or entities. However, the format and execution requirements of each will type differ slightly:
An attested will is a will signed by its creator in the presence of two disinterested witnesses (who also sign the document).
A statutory will (which you can find online or at office supply stores) is a pre-formatted, “fill-in-the-blanks” template that is functionally similar to an attested will and must also be signed in the presence of two disinterested witnesses.
A holographic will is created when the material terms of the document are in the testator’s handwriting. A holographic will does not have to be signed in the presence of two disinterested witnesses.
Attested, statutory, holographic wills also share one significant quality: upon the death of the testator, each must be subjected to probate—the lengthy and expensive legal process whereby the will is submitted to and administered in probate court.
However, not all wills are created equal. As you likely noticed, I did not reference pour-over wills in the above list; and this is because a pour-over will is notably different than the will types discussed above. Drafted in conjunction with a trust, a pour-over will directs any assets possessed by its creator to be transferred to his or her trust upon death (to be distributed in accordance with the trust’s terms)—and this transfer typically occurs outside of court, an expensive and lengthy process. Call me a biased estate planning attorney, but I prefer the pour-over will.