Wills

What is a will?

 A will is a legal document that allows you to direct the distribution of your assets, appoint the individual you want to carry out your wishes, and nominate a guardian for minor children.  These are the important aspects of a will:

–        Beneficiaries.  Your will specifies the names of the individuals you want to receive your assets and how your assets should be distributed.

–        Executor.  The individual you nominate as your executor will collect and manage your assets, pay any debts, expenses and taxes that might be due, and then, with the court’s approval, distribute your assets to your beneficiaries according to the instructions in your will.

–        Guardian for minor children. You may nominate a person to be responsible for your child’s care if your child is under 18 at the time of your death.

A will is just one component of a complete estate plan.  An advance health care directive and power of attorney for asset management are also an important part of an estate plan.   You should consult with an attorney to ensure that you have a complete estate plan.

Do I need a will?

Yes,  you need a will if you want to specify who will inherit your property.  Even if you do not own a home, you can still specify how you want your cash and personal property to be distributed.  A will is also important if you have minor children so that you can nominate a guardian to care for your children in the event they are under 18 at the time of your death.

Can I write my own will?

Yes, you can. California allows “holographic” wills, which is a will that is handwritten.

However, your will must meet strict requirements to be valid.  A poorly written will or an invalid will can create ambiguities regarding your intent and can lead to disastrous unanticipated consequences.  Therefore, you should consult an attorney before preparing such an important legal document on your own. 

What is the difference between a will and a pour-over will? 

A pour-over will is a specific type of will used in conjunction with a living trust.  If you have a living trust, you should also have a pour-over will.  A pour-over will directs that your estate (any assets inadvertently left out of the living trust) be transferred to your living trust so that your estate can be distributed in accordance with the terms of the trust.  A living trust can only control those assets that are titled in the name of the living trust (with the exception of certain assets that have the living trust as the beneficiary).  Therefore,  upon your death, if assets are left out of the trust, the pour-over will is used to transfer such assets to the trust.  If the value of assets left out of the trust exceeds $150,000, probate proceedings will be required to transfer these assets.  The goal is to have all your assets titled in the name of your trust so that the pour-over will is never used.

What is a “living will”?

A “living will” should not be confused with a “will” or “living trust.”   A “living will” refers to a legal document that gives instructions regarding the use of life sustaining treatment.   An advance health care directive accomplishes the same purpose of a living will but also allows you to appoint an individual to make medical decisions for you in the event of your incapacity.

What happens at death if I have a will?

If you leave a will and the value of your estate exceeds $150,000, your estate will be subject to probate.  The individual you nominated in your will to administer your estate (your executor) will file a probate petition to open probate proceedings and present your will to court.   Probate is a court supervised proceeding where a Judge oversees the administration of a person’s estate.  Probate involves the resolution of creditor’s claims, inventory and appraisal of assets, and distribution of the estate in accordance with the deceased person’s will.   See the section on Probate for additional details.   If your estate is under $150,000 (known as a small estate), there are informal procedures to distribute your estate without probate.

What happens at death if I do not have a will?

If a person dies without a will, the person has died “intestate.”  If you die intestate, your estate will be distributed to your heirs in accordance with California’s intestacy laws.  The law may not distribute your estate to the people you desire.  Also, the law gives priority to certain people to administer your estate, which may not be the person you desire.  Therefore, having a will or living trust in place prior to your death will ensure that the people you desire will receive your estate and the person you desire will carry out those wishes.

If your estate exceeds $150,000, your estate will be subject to probate.  If your estate is under $150,000 (known as a small estate), there are informal procedures to distribute your estate without probate.

Should I have a will or a living trust? 

This depends on each person’s particular circumstances.  You should consult with an attorney to determine which option is best for your particular situation.