Why do I need a will?
A will allows you, instead of state law, to decide who will receive
your assets after you die. If you don't have a will, your estate
will be distributed as required by the California Probate Code.
If there is no estate plan,
usually your nearest relatives will inherit the estate.
Perhaps you would have wanted it this way, but if you wanted to make a gift to other relatives, to someone outside
of the family, or to a charity, it won't happen unless you
had an estate plan. For a discussion of what happens if you die without
a will, see this page: Intestate Succession
Nomination of executors:
In addition to distributing your estate, a will can nominate
an executor, who is the person who will be in charge of administering
the estate. If you don't have a will, state law will determine which
person has the highest priority to become the executor.
Nomination of guardians:
A will also can nominate guardians for your children who are under age 18. This
nomination provides valuable information to the court that will
determine who the guardians will be. The probate of the will
and the appointment of guardians are done in two separate court
proceedings. If the will nominates a guardian, that nomination
is one of many factors that a judge will consider during a guardianship
proceeding. The nomination of a guardian in a will is important
because it may be the only reliable evidence of who the decedent
wanted as guardian.
Does a will have to go
through probate?
If the decedent owned less than $150,000 in probate assets,
the will probably will not have to be probated. California law provides
for "summary probate," which allows the executor to
avoid going to court for most smaller estates. The executor submits
affidavits to the institutions holding the assets, receives the
assets, pays the estate expenses, and then distributes the balance
of the estate to the heirs. Estates of less than $150,000 can
be probated if necessary, such as in cases in which the estate
is insolvent. Click here for more information about probate:
Probate
Click here for more information about avoiding probate: Avoid Probate
Is a will needed if I have
a living trust?
Yes. The type of will used with a trust is called a "pourover
will," and its function is to "pour" assets into
the trust if the assets were not transferred to the trust prior
to the death of the decedent. The primary distribution of assets
through a pourover will is to the living trust, not to the beneficiaries
of the estate. The result is that the assets that should have
been transferred to the trust before the decedent's death will
be transferred to the trust after the death and then distributed
in accordance with the provisions of the living trust. The main
drawback is that if those assets total more than $150,000, a
probate will be required to make the transfer to the trust. Click
here for more information about living trusts: Living
Trusts
What is a codicil?
A codicil is an amendment to a will. The codicil should be kept with the
original will because both documents constitute the decedent's will.
Because codicils can be misplaced, clients should consider signing a new will
instead of amending their current will with a codicil.
