Wills

Why do I need a will?

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If you do not have one, a court decides who will get your assets.

A will is a device that lets you tell the world whom you want to get your assets. Die without one, and the state decides who gets what, without regard to your wishes or your heirs' needs.

So-called intestacy laws vary considerably from state to state. In general, though, if you die and leave a spouse and kids, your assets will be split between your surviving mate and children. If you're single with no children, then the state is likely to decide who among your blood relatives will inherit your estate.

Making a will is especially important for people with young children, because wills are the best way to transfer guardianship of minors.

You may amend your will at any time. In fact, it's a good idea to review it periodically and especially when your marital status changes. At the same time, review your beneficiary designations for your 401(k), IRA, pension and life insurance policy since those accounts will be transferred automatically to your named beneficiaries when you die.

A will is also useful if you have a trust. A trust is a legal mechanism that lets you put conditions on how your assets are distributed after you die and it often lets you minimize gift and estate taxes. But you still need a will since most trusts deal only with specific assets such as life insurance or a piece of property, but not the sum total of your holdings.

Even if you have what's known as a revocable living trust in which you can put the bulk of your assets, you still need what's known as a pour-over will. In addition to letting you name a guardian for your children, a pour-over will ensures that all the assets you intended to put into the trust are put there even if you fail to re-title some of them before your death.

Any assets that are not re-titled in the name of the trust are considered subject to probate. As a result, if you haven't specified in a will who should get those assets, a court may decide to distribute them to heirs whom you may not have chosen.

Pour-Over Wills

A “pour-over” will works in conjunction with a trust. The “pour-over” will is a safety net in the event that an asset in your estate has to be probated because it “pours” the asset back into your trust at the end of the probate. So, if you forget to put an asset into your living trust, or if the asset is worth more than $100,000, it will have to be probated. However, your executor will be directed to distribute the money or property according to the terms of your trust, not in accordance with the intestacy laws of California.

Simple Wills

Simple wills are effective for estates under $100,000 in combined assets because probate will not be required, and the executor can distribute the property privately, without court involvement.

Preparing Your Own Will

Many people ask if they can prepare their own will without the assistance of an estate planning attorney. Rarely is a self-prepared will problem free. The requirements for executing a valid will are very specific, and you are also restricted from leaving your money to certain types of people, like a caregiver or the attorney who drafts your will.

If you have never had a will, or you need to update or change your will, you should not proceed without the advice and guidance of a qualified California estate planning attorney. By working with an experienced estate planning lawyer, you will be able to create a valid and enforceable will.

It is important to remember that your will requires a probate! If you want your heirs to avoid various hassles and probate delays, you will need to discuss other estate planning options with our Law Firm.

Holographic Wills

A holographic will is created in the testator’s own handwriting. Although holographic wills are recognized in California, they create many problems in probate and often end up disputed by the beneficiaries, especially if the decedent made other wills prior to or after the holographic will was created. Before a holographic will can be probated, the handwriting must first be proven to be that of the testator. The executor must provide a sample of the testator’s handwriting or produce a witness who can swear that they saw the decedent write the will. Also, many people combine a partially typewritten will with handwritten notes. Then the court must determine which is the operative document and if it was properly executed. These are just some of the reasons why holographic wills often fail in probate.