Do I Need a Will?

1. What Does A Will Do?

A will is a legal document, drafted and executed in accordance with state law, which become irrevocable at your death. In your will, you can name:

Your beneficiaries. These are family members, friends, a domestic partner, or charitable organizations who will receive your assets as you direct. You may provide for specific gifts of such items as jewelry or a specific sum of money to named beneficiaries. You should also provide for the distribution of the “residue” of your estate – that is, your remaining assets (which do not need to be specified) which are not specifically given to individuals or organizations in your will.
A guardian for your minor children. You may nominate a person who will have the responsibility to care for a child of yours if you and your spouse die before the child attains 18 years of age You may also name a guardian – who may or may not be the same person – to be responsible for management of assets given to a minor child, until the child attains 18 years of age.
An executor. This person or institution of your choice, named in your will and appointed by the probate court, collects and manages your assets, pays your debts and expenses and any taxes that might be due, and then, in a manner approved by the court, distributes your assets to your beneficiaries in accordance with the provisions of your will. Your executor plays a very important role with significant responsibilities It can be a time-consuming job. You should choose your executor carefully. A will is a part of our “estate plan.”

2. Does A Will Cover Everything I Own?

No. Generally speaking, your will affects only those assets which are in your name alone at your death. Some assets which are not affected by your will include:

Life insurance. The cash proceeds from an insurance policy on your life are paid to whomever you have designed as beneficiary of the policy in a form filed with the insurance company – no matter who the beneficiaries under your will may be.
Retirement plans. The cash proceeds from an insurance policy on your life are paid to whomever you have designated as beneficiary of the policy in a form filed with the insurance company – no matter who the beneficiaries under your will may be.
Retirement plans. Assets held in retirement plans, such as a 204(k) or an IRA, are transferred to whomever you have named as beneficiary in the plan documents.
Assets owned as a joint tenant. Assets such as real estate, automobiles, bank accounts and other property held in joint tenancy will pass to the surviving joint tenant upon your death, not in accordance with any directions in your will.
“Transfer on death” or “pay on death.” Some bank accounts and security accounts may beheld with a beneficiary designation such as “transfer on death” (“TOD”). Other assets, such as U.S. savings bonds, may be held in a form directing those assets to be “paid on death” (“POD”) to a named beneficiary. These assets will pass pursuant to those directions, and not pursuant to your will.
Community property with right of survivorship. Married couples may hold title to their community property in their names as “community property with right of survivorship.” Property held in that manner at the death of the first spouse is not affected by that spouse’s will, but passes instead to the surviving spouse.
Living trusts. Assets held in a revocable living trust at your death are distributed pursuant to the provisions of that trust document. A living trust allows for the management of your assets pursuant to the terms of the trust without a court-supervised probate proceeding. See my brief article entitled, “Do I need a Living Trust?”
Your spouse’s half of community property. In California, any asset acquired by you and your spouse from earnings during your marriage are community property. You and your spouse own equal shares of those assets. Your will, therefore, affects only your half of the community property, not your spouse’s. Assets that either spouse owned at the date of the marriage, together with gifts and inheritances given to just one spouse during the marriage, are that spouse’s separate property. Your will affects all of your separate property held in your name alone.
Even if your entire estate consists of property held in joint tenancy, a life insurance policy and a retirement plan, you should till consider making a will. If the other joint tenant dies before you do, then the property held in joint tenancy will be in your name alone and subject to your will. If named beneficiaries die before you do, the assets subject to a beneficiary designation may be payable to your estate. You may unexpectedly be entitled to a bonus a prize, a refund, or may receive an unexpected inheritance which would then be subject to your will as well. If you have minor children, the nomination of a guardian of their person and estate is a very important reason for making a will.

3. What Happens If I Don’t Have A Will?

If you die without a will (there is, “intestate”), California law will determine the beneficiaries of your estate. Contrary to popular myth, if you die without a will, everything does not automatically go to the state. If you are married, your spouse receives all of your community property. Your spouse will receive part of your separate property, and the rest of your separate property will be distributed to your children, or grandchildren, parents, sisters, brothers, nieces, nephews or other close relatives.

If you are not married, your assets will be distributed to your children or grandchildren, if you have any – or to your parents, sisters, brothers, nieces, nephews or other relatives. If your spouse died before you, his or her relatives may also be entitled to some or all of your estate. Friends, a domestic partner, or a favorite charity will receive nothing if you die without a will. The State of California is the beneficiary of your estate if you die intestate and you (and your deceased spouse) have no living relatives.

4. Are There Various Kinds Of Wills?

Yes. In California you can made a will in one of three ways:

A handwritten or holographic will. This will must be completed in your own handwriting. You must date and sign the will. Your handwriting must be legible, and the will must clearly state what you are leaving and to whom. A handwritten will does not have to be notarized or witnessed. Even so, having the will signed by two witnesses is a good idea. It is also a good idea to retain a qualified lawyer to check the will to be sure that it conforms with California law and is clear with respect to your intentions and directions.
A statutory will. California law provides for a “fill-in-the-blanks” will form. The will form is designed for people with relatively small estates If there is anything you do not understand or if you are making any provisions which are complicated or unusual, you should ask a qualified lawyer to advise you.
A will prepared by a lawyer. A qualified estate planning lawyer can provide you with the assurance that your will is prepared in accordance with California law. The lawyer can also offer suggestions and help you understand the many ways that property can be transferred to or for the benefit that property can be transferred to or for the benefit of your beneficiaries. Planning can be extremely helpful and economical in the long run for you and your family.

5. What If My Assets Pass To A Trust After My Death?

You may make a provision in your will for a trust to be created after your death and funded with assets held in your estate. When trusts ae created under a will, they are known as “testamentary trust.” When an appropriate beneficiary designation, testamentary trusts can even be beneficiaries of life insurance policies.

If you have a living trust, then your will is often referred as a “pour over” will. that will provides that any assets held in your name at your death and not in your living trust will be added to the trust, to beheld, administered and distributed in accordance with its terms.

For beneficiaries who are minors, you may also consider providing for transfers from your estate to a custodian under the California Uniform Transfers to Minors Act.

6. Can I Change My Will?

Yes. You should review your will periodically because, if it is not up to date when you die, your estate may not be distributed as you wish.

Your will can be changed through a “codicil,” which is a legal document which must be drafted and executed in accordance with the same state laws which apply to wills. A “codicil” is simply an amendment to your will. Your will must not be changed by crossing out words or sentences or making any notes or written corrections on it. You should seek the advice of a lawyer and make a new will then you marry or divorce. You should also review our will when there are any major changes in your family (such as births and deaths), which the value of your assets significantly increases or decreases, and when it is no longer appropriate for the persons named as guardian or executor or testamentary trustee to act in that capacity.

If you have moved to California from another state and have a will which is valid under the laws of that state, California will honor its validity. It is important for you to review your will when a qualified California lawyer, however, since California laws will govern the probate of our will if you reside here at your death. If you move to another state, your California will should be reviewed by a lawyer there.

7. How Are The Provisions Of My Will Carried Out?

The process by which the provisions in your will are carried out following your death is known as “probate.”

Probate is the court-supervised process developed under California law which has as its goal the transfer of your assets to your death to the beneficiaries set forth in your will, and in the manner prescribed by your will. It also provides for the relatively quick determination of the validity of any claims by creditors against your assets at your death. At the beginning of a probate administration, a petition is filed with the court, usually by the person or institution named in your will as the person or institution named in your will as executor. After notice is given and a hearing is held, your will is admitted to probate and an executor is appointed.

If your will provides that assets shall pass to your surviving spouse at your death, then those assets can be transferred to your surviving spouse through the filing in the probate court of a “spousal property petition,” which is a simple and less expensive procedure than a formal probate administration.

If the assets in your name alone at your death have a total value of less than $166,250¹, 1then generally the beneficiaries under your will may follow a statutory procedure to effect the transfer of those assets pursuant to your will, subject to your debts and expenses, without involving the probate court. If the value is greater than the $166,250 a revocable trust may be in your best interest.

Disadvantages of a probate include its public nature; the provisions of our will and the value of your assets become a public record. Also, because lawyer’s fees and executor’s commissions are based upon a statutory fee schedule, the expenses may be greater than the expenses incurred by a comparable estate managed and distributed under a living trust. Time can also be a factor; often distributions to beneficiaries can be made pursuant to a living trust more quickly than in a probate proceeding.

8. Who Should Know About My Will?

Other than the lawyer who writes a will for you, no one needs to know what your will says. But the location of your original will should be known by your executor and other close friends or relatives. Your will should be kept in a safe place such as your safe deposit box, your lawyer’s safe, or a locked, fireproof box at your residence.

9. Will My Beneficiaries Have To Pay Estate Taxes?

Assets that are transferred to either your spouse (if he or she is a U.S. citizen) or to charitable organizations are not subject to estate taxes. Assets passing to other individuals will be taxed if the net value of those assets – in 2023 – is approximately $11,000,000 or more. For estates which approach or exceed this value, significant estate taxes can be saved by proper estate planning. That planning, must usually be accomplished before death and, in the case of married couples, before the death of the first spouse. While estate planning generally focuses upon estate taxes, planning must also take into consideration income, gift, property and generation-skipping taxes as well.

10. What Other Planning Should I Do?

List of assets and debts. Making a list of your assets and keeping it in a place known to your executor or other family members is a great help to them when ou are not able to share that information with them. List your bank accounts, safe deposit boxes, stocks and bonds, real estate, and other assets. Also, list the names and addresses of anyone to whom you owe money.
Durable power of attorney for property management. In this document, you appoint another individual (the “attorney-in-fact”) to make property management decisions on your behalf if you are incapacitated. The attorney-in-fact manages your assets and must do so in a product manner accountable to you and solely to your best interest.
Advance health care directive/durable power of attorney for health case. This document allows the person named as attorney-in-fact to make health care decisions for you when you cannot longer make them for yourself. It may also contain statements of wishes concerning such matters as life sustaining treatment and other health care issues, and instructions concerning organ donation, disposition of remains and your funeral.

As of 2023 Probate Code 13100 allows for the transfer of decedent’s real and property in California if the value does not exceed $166,250. Excluded from this value under Probate Code 13050 is any property held by the decedent as a joint tenant, multiple-party accounts, vehicles, vessels, mobile homes, commercial coaches, and $16,625 due decedent for salary owing to the decedent for employment for personal services. These sums are adjusted annually. ↩︎