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Last Will & Testament
A Will is a traditional legal document which:
- Names individuals (or charitable organizations) who will receive your assets as the beneficiary after your death, either by outright gift or in a trust. They may or may not be natural heirs.
- Nominates an executor who will be appointed and supervised by the probate court to manage your estate; pay your debts, expenses and taxes; and distribute your estate according to the instructions in your Will.
- Nominates guardians for your minor children.
- A Will does not avoid Probate, but does cost less than a trust to prepare.
If you do not have a Will, your estate will be distributed as required by the California Probate Code. Your assets will usually go to a spouse and/or the closest blood relatives. A Will allows you, instead of the California Code and Probate Court, to decide who will receive your assets after your death.
A properly prepared Will always nominates an executor who is the person in charge of administering your estate. If you don’t have a Will, the Probate Court will determine which person will become the executor. Sometimes, this is a contested issue.
A well done Will should nominate guardians of minor children. This nomination provides valuable information to the Probate Court who will determine and appoint the guardians. 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 very important because it may be the only reliable evidence of who the decedent wanted as guardian. As such, the Probate Court often favors the guardian nominated by the decedent in the Will. If there is no Will, the matter may be contested by all interested parties.
If the decedent owned less than $150,000 in personal property assets and no real estate assets, the Will probably will usually not have to be probated because California law provides for “summary probate,” which allows the executor to avoid going to court for most smaller estates. The process involves the executor submitting 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 in the Will. If the estate is insolvent/bankrupt, Estates of less than $150,000 can still be probated.
If you have a Revocable Living Trust, it is common to have a pourover Will. It works as a safety net device for assets that were not properly transferred to the Living Trust. The 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 distribution of these assets by the executor through the pourover Will is to the successor trustee of the Living Trust. The trustee will then later transfer those assets to the beneficiaries of the estate as specified in the Living Trust.
Unfortunately, if those non-trust assets total more than $150,000, a probate will be required to make the transfer to the Living Trust.
Changes to a Will
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 that will be submitted and used in the probate.
A holographic Will can be made by anyone with or without a lawyer. It is simply a document in the testator’s own handwriting (entirely; nothing typed), identifying the document as one’s “last Will and Testament”, and being of sound mind give and bequeath there assets as follows to named individuals and further identifying who shall be the executor of the estate and the guardian of any minor children. It then needs to be signed and dated. No witnesses are required.
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