Family Protection Planning, Estate Planning, Trusts , Trust Administration and Probate in Dana Point
What is a will?
A will is a document which directs how an individual (the testator) wants his assets distributed after his death. It can be used to specify the executor of the estate, the beneficiaries, any guardians for minor children as well as any particular funeral instructions, for example: cremation vs. burial, or particular instructions for payment of funeral expenses
Is there only one type of will?
No, In California, there are a four wills that you might encounter:
Witnessed Will: this is the most common type of will. As its name suggests, it must be witnesses and signed. The magic number of witnesses in all 50 U.S. states is two. Although not necessary, it is customary to have both witnesses present when the testator sign the will. Additionally, to minimize future contests of the will, the witnesses should be disinterested persons meaning that they are not beneficiaries under the will. In California, the witnesses must sign the attestation clause "under penalty of perjury". These words must also be featured on the attestation clause as well. For sample language of a conforming attestation clause, click here.
A holographic will is a will that is written in the testator's own handwriting. California recognizes this type of will as valid as long as it is dated and signed by the testator and that all the material portions of the will are in the testator's handwriting. This will does not need to be witnessed or notarized.
The Probate Code includes a Statutory Will. It is appropriate for individuals with small estates. You should seek the advice of your financial planner, accountant or an estate planner to verify the size of your estate. Under estimating the value of your gross estate could end up costing your heirs unnecessary inheritance tax after your death.
A pour-over will is usually drafted in conjunction with a revocable or living trust. It directs that all assets not included in the trust at the time of the testator's death should be distributed according to the provisions of the trusts. The pour-over will must be executed in the same manner as the witnessed will. For this requirements, see Witnessed Will, above.
What is needed for a will to be valid?
A will is valid if it is witnessed and signed by a testator with legal capacity. When we talk about legal capacity, we are referring to the requirement that the testator and the witnesses be at least 18 years old and that the testator have a required understanding of the estate planning process.
What happens if I die without a will?
Your estate will be distributed under the California Intestate Succession section of the Probate Code. If you have a surviving spouse, she will inherit all your community and quasi-community property. Your separate property will be distributed among your surviving relatives according to the rules set in the Code. If you do not have a surviving spouse, then your property will be distributed among your surviving relatives according to the Code.
What are community property, quasi-community property and separate property?
Community property refers to all property acquired during a marriage that is not separate property such as your home. It is owned by both spouses in a 50/50 split. Quasi-community property is community property acquired in another state, for example, your vacation home in Washington State. Separate property is property acquired by one spouse prior to the marriage or through gift or inheritance. Any property purchased with separate property will continue to be characterized as separate. Separate property is owned solely by the recipient of that property.
Do I need to know the character of my property for wills and trusts purposes?
Yes. The character of property in California is important because it determines what can be gifted or willed away and how much. With community property and quasi-community property, a spouse can only give away his/her 50% share which means that both spouse must consent to the transfer of any such property. Additionally, any gift, whether lifetime or through a will, of community property without the consent of both spouses, can be set aside by the non-consenting spouse. Before taking action regarding property, the character of the property should be clearly identified. An experienced estate planner should be consulted to ensure that property is properly characterized and that any gifts are done properly to avoid any future conflict.
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