Creating A Will in California
There are a number of facts about last wills in California that many people do not know. First, according to Legal Zoom, only about 45 percent of adults have a will, with the majority of those being over the age of 65. Some additional facts about wills include:
- If you do not have a will when you die, you will have died “intestate,” and the state of California will determine how to distribute your assets.
- One of the primary reasons to have a will if you have minor children is to nominate a guardian for those children.
- If you want to disinherit someone, a will can specify that.
- Your attorney can add specific language in your will that will help avoid contests to the will.
- A change in your marital status can change your will in ways you might not be happy with.
- You can provide passwords and other details to your digital life for your personal representative to ensure your digital assets are properly taken care of.
- While you might benefit more from a trust your estate planning attorney can help you make this determination, a will can allow you to make your wishes for your family and assets known following your death.
- Wills are not static—they can be replaced or changed at any time, so long as all legalities are followed.
- If you have a will, you will need to appoint a personal representative—a person you trust who will faithfully oversee and execute the wishes set forth in your will.
Requirements for a California Will
To legally prepare a will in the state of California, you must be at least 18 years old. You must sign your will or affirm your signature in the presence of two witnesses who will also sign the will. In the state of California, you are also allowed to write out your will in longhand and sign it—this is known as a holographic will—without the necessity of witnesses. No special words are required for a holographic will, so long as the provisions of the will and the signature are yours.
California also allows a statutory will, which is found in section 6240 of the Probate Code. Any California resident may obtain a copy of the statutory will, fill in the blanks, and sign at the bottom who also sign the will. Any additions or deletions to the statutory will—other than filling in the blanks—could potentially invalidate the will. It is generally a good idea to hire an attorney to prepare your will to ensure there are no mistakes that would render the will invalid. If you have assets worth more than $150,000, you have business-related assets, you own assets in another state, you want to create a trust fund for a child, or you want to minimize after death taxes, you should definitely consult an experienced estate planning attorney to prepare your will.
Do I Need an Executor for My California Will?
Yes, you will need to name an executor in your will—the person who will ensure your wishes are correctly followed and who will see that the will is properly probated. It is important that you choose an executor that you trust to follow the instructions you set forth in your will. You should also choose a person who is willing to serve as executor.
Can I Nominate a Guardian for My Children in My Will?
A will is a good place to nominate the person you want to take over custody of your minor children in the event of both parents’ death. Most people spend little time considering who would be a good guardian for their children, assuming the role would automatically fall to a family member. In fact, if no guardian is specifically nominated in a will, the decision falls solely to the courts. The California legal system could very well choose a guardian for your children who you would never choose. Although the court might choose a family member or close friend—they might not.
Does My Will Have to Go Through Probate?
Yes, most wills must go through a full California probate, with a few exceptions. There are ways to avoid probate in California, including:
- Gifting, or transferring property to others;
- Right of Survivorship transfer;
- Spouses and community property by Right of Survivorship;
- Revocable Transfer on Death Deed for real property;
- Payable-on-Death Accounts;
- Revocable or Irrevocable Trusts;
- Multi-Party Accounts;
- Real property not exceeding $50,000 in value by Affidavit; ($10,000 in certain circumstances)
- Real and personal property not exceeding $150,000;
- Simplified procedures for estates of $150,000 or less, or
- Personal property under $150,000 in Value by Affidavit.
It is important that you speak to an experienced estate planning attorney before making any of the above decisions related to your will.
If You Die Without a Will in California, What Happens to Your Assets?
Should you die intestate, the state of California will dispose of your assets according to California law. Quite often, this disposition of assets is not what the decedent would have wished. Without a will, your assets will be divided like this:
- If you die with no will or other estate plans (intestate) and you have children, but no spouse, your children will inherit everything, divided equally.
- If you die intestate with parents, but no children, spouse or siblings, your parents would inherit your entire estate, divided equally.
- If you die intestate with siblings, but no children, spouse or parents, your siblings would inherit your entire estate, divided equally.
- If you die intestate with a spouse and one child, your spouse will inherit all community property as well as half of your separate property, and your child or grandchild will inherit the other half of your separate property.
- If you die intestate with a spouse and two or more children, your spouse will inherit all your community property, and one-third of your separate property. Your children will equally divide the other two-thirds of your separate property.
What are the Differences Between a Will and a Trust?
A trust goes into effect as soon as you create and fund it. A will does not go into effect until your death, documenting who will receive your assets, and appointing a legal representative to carry out your wishes. A trust can distribute property prior to your death, upon your death, or afterward. Under a trust, the trustee (usually you, while you are alive, then to a successor trustee, after you die), can hold legal title to the property for a beneficiary. The beneficiary can be a person or persons who receive income from the trust during their lifetime or can be a person or persons who receive whatever is left over when the first set of beneficiaries die.
A will only covers property which is in your name only when you die, while a trust covers any property which has been transferred to the trust. A will must pass through probate, while a trust passes outside of probate, making a trust much more private. Wills and trusts both have advantages and disadvantages. It is important to speak to a knowledgeable California estate planning attorney to determine whether you would receive greater benefits from a will, a trust, or both.
How an Experienced California Estate Planning Attorney Can Help
Attorney Mark Gullotta has been helping Californians with their estate planning needs for more than fifteen years. Mark believes in a proactive estate planning approach, believing it results in a more predictable process, minimizing surprises and achieving the desired protections for those you love. Serving San Mateo County area, such as San Bruno, Millbrae, Burlingame, South San Francisco, Daly City Colma, and the City of San Mateo, Mark Gullotta offers 15-minute assessments, keeping you informed throughout the entire process, and offers you a flexible plan to grow with you and your family. Contact California estate planning attorney Mark Gullotta today for a comprehensive evaluation of your estate planning needs.