What you should know about California Wills
Every Californian should have a California Will.
A Will provides direction for the disbursement of your assets after you die. Even if you think you don’t have that much, give your assets to whom you want, not how the law directs.
What is a Will?
A Will is a legal document and will be enforced by the Probate Court if it has been prepared properly and according the legal guidelines. I have listed some of the most often asked questions about Wills and their answers. If you are a parent look especially at questions 2 & 15. Don’t hesitate to contact my office to set up a time to meet with me personally about your Estate Plan. Contact us at 858-549-8600 for your FREE consultation today.
1. What happens if I die without a Will?
If you die without a Will, what you own (your “assets”) in your name alone will be divided among your spouse, children, or other relatives according to state law. The court will appoint a relative to collect and distribute your assets.
2. What can a Will do for me?
In a Will you may designate who will receive your assets at your death. You may designate someone (called an “executor”) to appear before the court, collect your assets, pay your debts and taxes, and distribute your assets as you specify. You may nominate someone (called a “guardian”) to raise your children who are under age 18. You may designate someone (called a “custodian”) to manage assets for your children until they reach any age between 18 and 25.
3. Does a Will avoid probate?
No. With or without a Will, assets in your name alone usually go through the court probate process. The court’s first job is to determine if your Will is valid.
4. What is a guardian?
Do I need to designate one? Yes. If you have children under age 18, you should designate a guardian of their “persons” to raise them. If you do not, the minor children could become temporary or permanent wards of the court!
5. Does my Will give away all of my assets?
Do all assets go through probate? No. Money in a joint tenancy bank account automatically belongs to the other named owner without probate. If your spouse or child is on the deed to your house as a joint tenant, the house automatically passes to him or her. Life insurance and retirement plan benefits may pass directly to the named beneficiary. A Will does not necessarily control how these types of “non-probate” assets pass at your death.
6. Are there different kinds of California Wills?
Yes. There are handwritten Wills, typewritten Wills, attorney-prepared Wills, and statutory Wills. All are valid if done precisely as the law requires. You should see a lawyer if you do not want to use as statutory Will.
7. Who should make a Will?
Anyone age 18 or older and of sound mind.
8. Are there any reasons why I should NOT use a statutory Will?
Yes. A statutory Will is a simple Will. It is not designed to avoid court involvement, reduce death taxes, or other taxes. Talk to a lawyer to do tax planning, especially if (i) your assets will be worth more than $100,000 at your death, (ii) you own business related assets, (iii) you want to create a trust fund for your children’s education or other purposes, (iv) you own assets in some other state, (v) you want to disinherit your spouse or descendants, or (vi) you have valuable interests in pension or profit sharing plans. You should talk to a lawyer who knows about estate planning if a statutory Will does not meet your needs. A statutory Will treats most adopted children like natural children. You should talk to a lawyer if you have stepchildren or foster children whom you have not adopted.
9. May I change my Will?
Yes. A Will is not effective until you die. You may make and sign a new Will. You may change your Will at any time, but only by an amendment (called a codicil). You can give away or sell your assets before your death. Your Will only acts on what you own at death.
10. Where should I keep my California Will?
After you and the witnesses sign the Will, keep your Will in your safe deposit box or other safe place. If the original Will is in your possession and is misplaced or lost, the law presumes the Will was destroyed and has no effect. You should tell trusted family members where your Will is kept.
11. When should I change my Will?
You should make and sign a new Will if you marry or divorce. Divorce or annulment automatically cancels all property stated to pass to a former husband or wife under a Will, and revokes the designation of a former spouse as executor, custodian, or guardian. You should sign a new Will when you have more children, or if your spouse or a child dies. You may want to change your Will if there is a large change in the value of your assets.
12. What can I do if I do not understand something in this Will?
If there is anything in this Will you do not understand, ask a lawyer to explain it to you.
13. What is an executor?
An “executor” is the person you name to collect your assets, pay your debts and taxes, and distribute your assets as the court directs. It may be a person or it may a qualified bank or trust company.
14. Should I require a bond?
You may require that an executor post a “bond.” A bond is a form of insurance to replace assets that may be mismanaged or stolen by the executor. The cost of the bond is paid from the estate’s assets.
15. What is community property?
Can I give away my share in my California Will? If you are married and you or your spouse earned money during your marriage from work and wages, that money (and the assets bought with it) is community property. Your Will can only give away your one-half of community property. Your Will cannot give away your spouse’s one-half of community property.
By: GQ LAW
NOTICE:
This article provides general information about California law. The laws are constantly changing and this article is not intended to provide legal advice about your specific situation. Seek competent legal counsel. Let me advise you about your particular situation.
Gary A. Quackenbush, Esq.