What is a Last Will and Testament?
We spend a lifetime accumulating assets and cherished items with the hope of leaving them to our loved ones. The most common way of doing that is with a Last Will and Testament, commonly known as a Will. A will is a legal document that tells the court how you want your property to pass to your loved ones and sometimes your favorite organizations or charities.
Some standard terms in wills are:
Testator: The Testator is the person making the will and signing their name.
Beneficiary: A beneficiary is someone receiving an inheritance through a will. You leave your assets to your beneficiaries.
Executor: The executor is the person you select to distribute your estate according to your will.
Bequest: A bequest is a provision in a will that leaves property to a beneficiary.
Intestate: Intestate is the term describing when someone dies without a will.
Heir: When somen dies intestate, the state will distribute the property to the heirs according to that state's laws of intestate succession. In California, an heir is defined as any person, including the surviving spouse, who is entitled to take property of the decedent by intestate succession under California law.
Issue: Issue is a specific term for your direct descendants, such as children and grandchildren. Issue includes natural-born and adopted children. In California, adopted children are generally entitled to the same inheritance rights as the biological children of their adoptive parents.
Probate: Probate is the legal process through which a court examines, approves, and enacts the terms of a will.
Guardian: A guardian is a person you appoint to be legally responsible for your minor children after your death.
Residuary Estate: The Residuary estate is comprised of the remaining assets after all the specifically devised assets are distributed to the beneficiary. The will determines who receives the residuary estate.
Why Should You Have a Will?
There is no legal requirement that you must have a will in California. But, suppose you make no estate plans and die intestate. In that case, the State of California will distribute your assets according to California probate law.
In addition to having a will, several methods are available to direct specific assets to named beneficiaries outside of probate or a will. These include:
Trusts. Trusts are powerful estate planning tools, usually used in combination with a valid will. A trust is a fiduciary arrangement where you allow a trustee to hold assets on behalf of your beneficiaries. The trustee distributes the assets according to the terms of the trust. A will becomes effective upon the death of the testator. But you can establish a trust to take effect during your life or upon your death.
Transfer on Death. Suppose you title certain real estate or investment accounts using a transfer-on-death element in the title or ownership documents. In that case, the asset will pass directly to the named person outside of probate. While not all states allow transfer on death deeds for real estate, California does.
Payable on Death. This designation also allows the asset to pass to the beneficiary outside of probate and is commonly used on bank accounts.
But a Last Will and Testament is the centerpiece of any comprehensive estate plan. No matter your age or financial situation, writing a will is the first step toward creating an estate plan that protects your loved ones after you are gone.
With a valid California will, you can ensure that your assets will go to your chosen beneficiaries according to your wishes. You can choose a trusted person to be the executor and carry out your wishes. And you can have peace of mind by naming a trusted loved one as a guardian to care for your minor children when you are gone.
What Happens When You Have No Will In California?
Dying without a will has significant consequences for your loved ones. In California, when someone dies intestate, their assets are distributed according to state intestacy laws rather than their own wishes. This can lead to unintended consequences, like assets going to people or organizations that the deceased person may not have wanted to inherit.
When someone dies intestate in California, their assets are distributed to their closest relatives, according to state law. This usually includes their spouse, children, and parents. But, if there are no living relatives, their assets may go to the state. Dying intestate means you have no control over who will inherit your assets.
And the intestacy success rules in California are complex. A few examples are below.
If you die with:
Children but no spouse, then the children inherit everything.
- Spouse but no children, parents, siblings, or nieces or nephews, then the spouse inherits everything.
- Parents but no children, spouse, or siblings, then the parents inherit everything.
- Siblings but no children, spouse, or parents, then the sibling inherit everything.
- A spouse and one child or grandchild, then the spouse inherits all of your community property and one-half of your separate property.
- A spouse and parents, then the spouse inherits all of your community property and one-half of your separate property; and the parents inherit one-half of your separate property.
Additionally, dying without a will often leads to probate court, which can be lengthy and costly. Probate court validates a will and distributes assets according to the will or state law if there is no will. Without a will, probate court will have to determine who is entitled to inherit the assets, which can be lengthy and expensive.
And if the deceased has minor children, the court will appoint a guardian. If the deceased had specific wishes for their children's guardianship, the court does not have to honor those wishes without a will.
Legal Requirement for California Wills
Having a California will is a simple way to ensure that your assets are distributed to your loved ones according to your wishes. But there are many requirements for creating a legally enforceable will in California. A probate court might declare your will invalid if it does not meet those requirements under California law. Some of those requirements are:
1.) Age and Capacity of the Testator - Like many states, a California will must be written by someone at least 18 years old and of sound mind to be legally valid. The "of sound mind" element is defined by California statute but has to do with the testator not having sufficient mental capacity or suffering from a mental disorder. The person writing the will must have the mental capacity to understand the nature of their testamentary act. They must also know and understand their property and relations to their relatives affected by the will, like spouses, children, parents, and siblings.
Also, they must not suffers from a mental disorder with symptoms including delusions or hallucinations that would result in them giving away their assets in a way that would not have been done except for the existence of those delusions or hallucinations.
2.) In Writing - An oral or spoken will is only valid in California if it is also in writing. The testator can have another person write the will for them, which can be hand-written or typed. Since wills are often challenged by unhappy relatives, having your will drafted and prepared by a qualified California estate attorney is prudent and cautious.
3.) Signed and Dated - California wills must be signed and dated by a testator of sound mind and at least 18 at the time of signing.
4.) Witnesses - California probate law requires that wills be signed by two persons present with you and witness you signing the will. They also sign a legal affidavit acknowledging your mental capacity at the time of signing.
5.) Clearly Identify the Beneficiaries - You write a last will and testament to tell the probate court how you want your assets distributed after you pass away. Confusing and ambiguous language can result in the will being challenged. You can reduce this risk by clearly identifying the beneficiaries and precisely stating what each of them will receive from the estate.
When to Get a Last Will and Testament
A valid California will is one of the most important estate planning tools to ensure your assets go to your loved ones according to your wishes. But according to a Gallup poll, less than half of the people in the US have a will. Dying without a will can have tragic consequences on your family’s future well-being.
If you don’t have a valid will, now is the time to get one. And if you do have a will, now is the time to review and update it to make sure your current wishes are reflected. And a strategic estate plan can include your will and various trusts to protect your assets, minimize your taxes and help ensure your family's financial future.
Advanced planning with a qualified California estate planning attorney is always the best option.
Wills and trusts are important and complex tools and strategies that can seem overwhelming.
Let us help you choose the best options for you and your family.
At San Diego Legacy Law, our trust attorneys work closely with clients to evaluate their personal goals and available assets before incorporating trusts into their estate plans. Our founder, attorney Nicole D'Ambrogi, holds an LLM in International Taxation with concentrations in Financial Services and Wealth Management, which allows her to strategically analyze the many variables that can affect your ability to meet your estate planning goals instead of focusing on simple document preparation.
San Diego Legacy Law serves clients throughout San Diego and those in La Jolla, Del Mar, Rancho Santa Fe, El Cajon, Poway, Spring Valley, Chula Vista, Santa Rosa, Petaluma, Novato, and Healdsburg.
Contact us today to schedule a consultation to discuss your estate planning and asset protection needs.