“Who will get your property when you die?” The answer should be “to whomever you intend.”
The Estate Planning Legal Center, APC cannot possibly go into all of the details that making a Will in California entails. We do know that to decide to have only a Will prepared when you own property in lieu of a Revocable Living Trust can be a grave error. A Will may not be sufficient if you own real property, even if you are upside down on your mortgage.
A Will may be right for an individual with bank accounts that have a pay on death designation, (POD) or brokerage accounts with a transfer on death designation, (TOD) and/or a home vested/titled with a beneficiary deed. A Revocable Living Trust will control the matter or means in which your property is distributed, allowing you to name alternates and/or contingent individuals or charities in the event your designated beneficiary does not survive you. A Living Trust is an extremely flexible way to hold assets in that you do not need to change all of your accounts if you are making one change; that one change can be made to your Revocable Living Trust. The main goal is to avoid probate. This means that proper asset titling is extremely important.
Please contact us before deciding that you only need a Last Will and Testament. Maybe this is all you need, but in the event it’s not, it’s better to know now then create a Will that lands your Estate in probate.
When a Will is Probated you lose your privacy! Anything written in your Will, your wife’s or your husband’s name, the names and birth dates of your children, anybody you wish to disinherit (must be contacted) when a probate is filed, the name(s) of the designated executors, and many times the assets you own and the disposition of those assets. The Will is probated along with your Death Certificate and predators who pay to have access to these records sent directly to them and the general public bombard the surviving spouse with low offers to buy the house and so forth. The address and name of the surviving spouse is visible to all publicly and the Will many times states exactly what may be in the house destined for distribution which may even make the survivor of the deceased a target for burglary.
Who Needs a Will?
Everyone! But there is a difference with a Last Will and Testament and a PourOver Will which is created in conjunction with a Revocable Living Trust.
A standard Will means that your Estate will be distributed by the Will, hopefully in conjunction with beneficiary designations on your accounts.
A PourOver Will provides very little asset information and states that your Estate will be distributed according to the terms and provisions in your Revocable Living Trust. If and only if your Trust name is not on a particular asset will it then be destined for the probate court and your Will must then be utilized. It is the hope and prayer of every Estate Planning attorney that the PourOver Will is never used. If it is used, then you have most likely landed yourself in probate court due to improper asset titling.
A Will is a part of every plan and in the event an asset is inadvertently not titled in the Trust name and the asset/account has no beneficiary listed; believe it or not, it happens every day, typically between marital clients, when they die in a common event after having named the other spouse as their beneficiary or in the event one spouse dies shortly after the other spouse and the last surviving spouse has inherited and asset or account from the other spouse prior to death.
If you die without a Will it is called dying intestate.
After a person dies, one would think the deceased person’s assets would be disposed of in a traditional manner, to his or her family, but this is not always so. What determines how an Estate is transferred and to whom that Estate is transferred to depends on whether or not it is a Probate or Non-Probate Estate.
A Non-Probate Estate is transferred according to a Non-Probate instrument be it a Revocable Living Trust, life insurance policy, payment on death designations, transfer on death designations, legal life estates, or joint tenancy. A Probate estate is transferred by the deceased person’s Will, otherwise through intestacy (dying without a Will) – which is state law.
The traditional method of opting out of intestacy is to execute a Will. A Will is necessary as one of the most important steps in planning the distribution of your Estate (assets including personal property and real estate) following your death. A Will provides for the plan of distribution of your Estate after your death for your spouse, any children, other family members, pets, friends, and charities. The Estate Planning Legal Center, APC, here in San Diego works with the person making the Will, a male is called a Testator, a female making a Will is called a Testatrix. The Testator or Testatrix will appoint a person to act as the executor/executrix, (also called the personal representative) to administer the Last Will and Testament after your death. A Will is the document that gets you into the Probate Court so the court can oversee and manage the distribution of your Estate.
Why do I need a Will? You need a Will because while you think or believe you have done everything correctly, there is a very small chance that you may have not. If you have children under the age of 18, a Will will provide a Guardianship Provision designating a Guardian for their care.
- A Will provides for the distribution of your Estate at your death according to the rules of the state’s Probate Court. If you own property in other states, there will be a Probate in each state where the property is located.
- Our California Will allows you to nominate a Guardian who will have the responsibility to care for minor children.
- You may also appoint a Guardian to manage the assets given to a minor child or a Trustee through a Revocable Living Trust.
- You may also name an executor in your Will. The executor gathers your Estate for distribution, pays your debts and expenses and taxes then distributes your assets in according to the terms in the provisions of your Will.
- Any property you have in your Estate with a designated beneficiary, for example: bank accounts, retirement accounts, life insurance, and property held in joint tenancy to name a few, will pass to the intended beneficiary you have already designated on the instrument. These benefciary designations are referred to as Pay on Death (POD) and Transfer on Death (TOD).
Basic Requirements for a California Last Will and Testament:
- Age: The person making a Will (a testator/testatrix) must be at least 18 years old;
- Capacity: The testator must be of sound mind (capable of reasoning and making decisions);
- Signature: A California Last Will and testament must be signed:
- By the testator/testatrix;
- In the testator’s/testatrix’s name by some other person in the testator’s/testatrix’s presence and by the testator’s/testatrix’s direction;
- By a conservator, pursuant to a court order to make a Will… be careful with this one, not always!;
- Witnesses: A California Last Will and Testament must be signed by at least two persons each of whom (1) being present at the same time, witnessed either the signing of the Will or the testator’s / testatrix’s acknowledgment of the signature of the will and (2) understand that the instrument they are signing is the testator’s /testatrix’s Will;
- Writing: A Will must be in writing to be valid.
- Beneficiaries: A California Last Will and Testament may make a disposition of property to any person, including but not limited to any of the following:
An individual, a charity, a business entity, a school/ university, for profit group, non-profit group or any other legal entity;
A county, city, or any municipal corporation;
Any state, including California, the United States or any instrumentality thereof;
A foreign country or a governmental entity therein;
Can I just write the Will myself?
Yes, you can. Should you? Most likely not!
The Holographic Will: This is an instrument that is written by a living person in their own handwriting. It is recognized in California as a valid instrument if it contains all of the important details that a California Will must have. Most do not hold up due to major or minor details that the testator/testatrix failed to do.
Providing for your Pets and other Animals in your care
A Pet Trust can be created as an addition to your California Will. You can appoint a caretaker for your pet for the animal’s life. The testator/testatrix would have to create a testamentary addition to the will (known as a pour over Will) that would devise the pet to a trustee. The Estate Planning Legal Center, APC can give you more details in making provisions for your pet or other animals so that they will be provided for after your death.
How do I make Changes in my California Will and Testament?
A California Will and Testament may be changed whenever the Will maker (testator or testatrix) desires to make a change. The recommendation of the State Bar of California is that a Will should be re-visited and updated whenever the provisions you have in your Last Will and Testament no longer are your wishes, no longer apply to your situation or in the event you are married and your your marriage is dissolved or a guardianship is no longer required for your children.
Codicil: Codicils must be executed in accordance with the same state laws that are applicable to Wills. A Codicil to a Will references the original document and states the changes you are making. Many times it is a better idea to create a new Will rather than use a Codicil. If you go back to the same lawyer that created your document, this is very easy to accomplish.
Never, ever make changes in your California Will by crossing out words or sentences, making notes in the margins or any other correction or change you are trying to accomplish. If you do this, your Will is considered invalidated.
Never, ever keep old Wills around with your new Will, the old Wills should be destroyed to avoid any confusion after your death. If they are kept around and produced in court during a Probate the Judge could decide that the Will maker was confused as to the disposition of their estate and that is why they did not destroy the old Will.
How do I Revoke my Will
A California Will and Testament can be revoked by any of the following:
- Creating a subsequent Will which should revoke all or part of the prior Will expressly or by using different terms in the subsequent will that conflict with the Will made at an earlier date; or
- Being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either (1) the testator or (2) another person in the testator’s presence and by the testator’s direction.
The Probate Process is a Court supervised process that provides for:
- an orderly transfer of tile for the decedent’s property;
- ensures that creditors receive notice, an opportunity to present their claims and payment;
- extinguishes claims of creditors who do not present their claims their claims to the Probate Court;
- insures that the decedent’s property is properly distributed to those who are entitled by intestacy law or by Will to receive it;
At the beginning of a probate administration, a petition must first be prepared then it is filed with the court, usually by an Attorney. After notice is given, and a hearing is held, your Will is admitted to probate and an executor is appointed. At this time Letters Testamentary or Letters of Administration are issued to the Executor or Administrator (which ever the case may be. After that, an Probate Referee is assigned to appraise the estate. Before any property can be distributed Probate Fees must be paid to the Probate Court. If the market value of your Estate is valued at over $185,400.00 then you will need a Probate on the assest. The probate fees are on a graduated scale and typically paid according the the State Statutory fees regulated by the State which can be found on the courts website.
Cost of Probate
Probating a typical Estate is a costly process that ties up the decedent’s probate assets during the process. The process is costly due to probate court fees, personal representative fees, attorney’s fees, and miscellaneous other fees that are applicable. On average, probate of even a fairly simple, uncontested Estate takes anywhere from one to two years. Many can take up to three years or more. An experienced attorney will not make dreadful mistakes that will cost you unnecessary time in the probate process. One simple error on a court document can be an additional six months or more in probate.
A California Estate Tax Return, Form ET-1, must be filed by the Executor of an Estate in California if the Estate is required to file a federal estate tax return, Internal Revenue Service (IRS) Form-706. Pursuant to Revenue and Taxation Code Section 13302 the amount of California Estate tax is equal to the maximum allowable amount of the credit for state death taxes, allowable under the applicable federal Estate tax law.
It is extremely important to make a a Revocable Living Trust with a PourOver Will in California. If you do not do this, you can have a Last Will and Testament prepared which may control the distribution of your personal effects but without going through the probate process, a Will alone is never enough to distribute your Estate without additional planning (unless of course, you have no bank account or any other financial assets). If you die without a valid Will, you are said to have died “intestate” and your property will be distributed according to strict California state laws.
Intestacy Law of Distribution
Who Takes? How much?
Surviving Spouse 100% if no surviving children –if you have children (living/deceased with children it is more complicated.
If Property is not passing to the Surviving Spouse it is distributed in the following order:
- Children Equally
- Parents Equally
- Siblings Equally
- Grandparents Equally
- Issue of Grandparents Equally
- Next-of-Kin By degree of Relationship
- Goes back to State –not distributed 100%
With a surviving spouse: Spouse typcially recieves one-third (1/3) of the of decedent’s community property and one third (1/3) of the separate property, the children recieve 2/3 of the community property and 2/3 of the separate property, shared equally between them. If there are two or more children of the decedent. If the decedent had only one child, then surviving spouse and child split the community property of the decedent and the separate property of the decedent fifty percent (50%) to each of them.
If not married, your assets will be distributed to your next-of-kin, usually to your children, if you have any then living, or to your parents, siblings, nieces, nephews or other close relatives. The court will ultimately decide who gets your Estate and how to divide it if you die without a valid Will at a large cost to your family.
When you decide to make a California Will, please call the Estate Planning Legal Center, APC @ (858) 560-0776 and we will make sure that your valid Will keeps the laws of intestacy from deciding the distribution of your Estate for you.