Do I Need A Will? 

1. What Is a Last Will and Testament? 

Your last will and testament is a written legal document signed in accordance with the California probate code, in which you give certain instructions to be carried out after your death. For example, you may direct the distribution of your assets (your money and property), and give your choice of guardians for your minor children. It becomes irrevocable at your death and will be subject to probate at that time. In your last will and testament, you can name:

• The beneficiaries of your estate. You may name beneficiaries (family members, friends, spouse, domestic partner or charitable organizations, for example) to receive your assets according to the instructions in your last will and testament. You may list specific gifts, such as jewelry or a certain sum of money, to certain beneficiaries, and you should direct what should be done with all remaining assets of your estate (any assets that your will does not dispose of by specific gift).
• A guardian for your minor children. You may nominate a person to be responsible for your minor child's personal care if you and your spouse die before the child turns 18. You may also name a guardian-who may or may not be the same person-to be responsible for managing any assets given to the child, until he or she is 18 years old.
• An executor of your estate. You may nominate a person or institution to collect and manage your probate estate assets, pay any debts, expenses and income or estates taxes that might be due, and then, with the probate court's approval, distribute your probate assets to your beneficiaries according to the instructions in your last will and testament. Your estate executor serves a very important role and has significant responsibilities. It can be a time-consuming job. You should choose executor for your estate carefully.

Keep in mind that a last will and testament is just part of the estate planning process. And whether your estate is large or small, you probably need an estate plan. For more information on estate planning, see Do I Need Estate Planning? (Back to Top)

2. Does a Last Will and Testament Cover Everything I Own? 

• Life insurance. The cash proceeds from an insurance policy on your life are paid to whomever you the designated beneficiary of the policy in a form filed with the insurance company called the beneficiary designation-no matter who the beneficiaries under your last will may be.
• Retirement plans. Assets held in retirement plans, such as a 401(k) or an IRA, are transferred to whomever you have named as beneficiary in the plan documents-no matter who the beneficiaries under your last will and testament may be.
• Assets owned as a joint tenant with right of survivorship. Assets such as real estate, automobiles, bank accounts and stock accounts that are held in joint tenancy with right of survivorship will pass to the surviving joint tenant upon your death, and not in accordance with any directions in your last will and testament.
• "Transfer on death" or "pay on death." Certain securities and brokerage accounts include a designation of one or more beneficiaries to receive the assets in that account when the account owner dies. The names of the beneficiaries are preceded by the words "transfer on death" or "TOD." Other assets, such as bank accounts and U.S. savings bonds, may be held in a similar form using the owner's name and the beneficiaries' names preceded by the words "paid on death" or "POD."  These type of beneficiary designations are not controlled by your last will and testament and the assets are not subject to administation of the estate through the court of probate.
• "Community property with right of survivorship." Married couples or registered domestic partners may hold title to their community property assets in their names as "community property with right of survivorship." Then, when the first spouse or domestic partner dies, the assets pass directly to the surviving spouse or partner without being affected by the last will and testament, and outside the scope of the California probate court.
• Living trusts. Generally, assets held in a revocable living trust are distributed according to the instructions in the living trust regardless of the instructions in your last will and testament-with no need for probate court supervision. You can name yourself as the initial trustee of your living trust (most people do), and then name a successor trustee to manage the living trust if you become unable to do so. With a living trust, your assets are managed for your benefit during your lifetime and then transferred to your beneficiaries when you die without court of probate supervision. For more detailed information, see Do I Need a Living Trust?
• Your spouse's or domestic partner's half of community property. In California, any assets acquired by you and your spouse or registered domestic partner from earnings during your marriage or registered domestic partnership are community property. You and your spouse or registered domestic partner own equal shares of those assets. Your last will and testament, therefore, affects only your half of the community property. Assets that either of you owned before your marriage or registered domestic partnership, and gifts or inheritances acquired later, are usually separate property and will be included in your probate estate. Your last will and testament affects all of your separate property assets.

Even if your entire estate consists of assets held in joint tenancy, a life insurance policy and a retirement plan, there are still good reasons for making a last will and testament. For example, 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 probate through the probate of the will. If named beneficiaries die before you do, the assets subject to a beneficiary designation may be payable to your estate. If you receive an unexpected bonus, prize, refund or inheritance, it would be subject to your last will and testament. And if you have minor children, nominating a guardian for them in your last will and testament is very important.  (Back to Top)

3. What Happens If I Don't Have a Will? 

If you die without a will (referred to as 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 of California. If you are married or have established a registered domestic partnership, your spouse or domestic partner will receive all of your community property assets. Your spouse or domestic partner also will receive part of your separate property assets, and the rest of your separate property assets will be distributed to your children or grandchildren, parents, sisters, brothers, nieces, nephews or other close relatives, pursuant to the California intestacy statute.

If you are not married or in a registered domestic partnership, and you have no will, 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 determined by the California intestacy statute. If your spouse or domestic partner dies before you, his or her relatives may also be entitled to some or all of your estate assets. Friends, a non-registered domestic partner or your favorite charities 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 or domestic partner) have no living relatives.  (Back to Top)

4. Are There Various Kinds of Wills? 

• A handwritten or holographic will. This will must be completely in your own handwriting. You must date and sign the will. Your handwriting has to 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. However, any typed material in a handwritten will may invalidate the will. (A typed last will and testament must be signed by two witnesses.) It is a good idea to consult with a qualified estate planning lawyer or wills and trusts attorney to make sure your last will and testament conforms with California law and does not have any unintended consequences.
• A statutory will. California law provides for a "fill-in-the-blanks" do it yourself will form. (This form can be printed out from the Statutory Will site. This statutory 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 that are complicated or unusual, you should ask a qualified estate planning attorney or wills and trusts lawyer to provide you with legal advice concerning making a will.
• A last will and testament prepared by an estate planning lawyer or wills and trusts attorney. A qualified estate planning lawyer or wills and trusts attorney can make sure that your last will and testament conforms with California law of wills and trusts. The wills and trusts lawyer or estate planning attorney can make suggestions and help you understand the many ways that assets can be transferred to or for the benefit of your beneficiaries. A wills and trusts attorney or estate planning lawyer can also help you develop a complete estate plan and offer alternative plans that may save estates taxes. This kind of planning of an estate can be extremely helpful and economical in the long run. Your estate planning lawyer or wills and trust attorney will either personally supervise the signing of your last will and testament or will give you detailed instructions on the rules for its execution by you and two witnesses (who are not beneficiaries of your estate).

No matter what kind of last will and testament you use, the will should be solely yours and not a joint will with your spouse, registered domestic partner or anyone else.

Also, keep in mind that your last will and testament is not a living will. The term living will is used in many states to describe a legal document that states you do not want life-sustaining treatment if you become terminally ill or permanently unconscious. In California, advance health care directives and durable powers of attorney for health care decisions are used for that same purpose (see #10).  (Back to Top)

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

You may make a provision in your last will and testament for your assets to be distributed to a trust upon your death. When trusts are created under a last will and testament, they are known as testamentary trusts. With an appropriate beneficiary designation, testamentary trusts can even be beneficiaries of life insurance policies and retirement plans.

If you have a revocable living trust, (that is, a trust established during your lifetime) then your last will and testament is often referred to as a pour over will. Such a pour over will includes instructions to transfer all remaining assets (assets that were not transferred to your living trust during your lifetime) to the revocable living trust at the time of your death.

For relatively small gifts to beneficiaries who are minors, you might also consider providing for transfers from your probate estate to a custodian under the California Uniform Transfers to Minors Act.  (Back to Top)

6. Can I Change or Revoke My Will? 

Yes. You should review your last will and testament periodically. If it is not up to date at your death, your estate may not be distributed as you wish.

Your last will and testament can be changed through a codicil, a written legal document that must be drafted and executed with the same procedure that applies to last wills and testaments. A codicil is an amendment to your last will and testament. You must not change your last will and testament by simply crossing out words or sentences, or by making any notes or written corrections on it.

You may also establish a new will and, in doing so, revoke your old will. If you get married or divorced, or establish a registered domestic partnership or terminate one, you should seek the advice of an experience estate planning lawyer or wills and trusts attorney and make a new last will and testament. You should also review your last will and testament when there are any other major changes in your family (such as births and deaths), when the value of your assets significantly increases or decreases, and when it is no longer appropriate for your proposed guardian or executor or testamentary trustee to act in that capacity.

If you have moved to California from another state and have a last will and testament that is valid under the laws of that state, California will honor its validity. It is important for you to review your last will and testament with a qualified California estate planning lawyer, however, since California law will govern the probate of your last will and testament if you live in California at your death. And if you move out of state, your California last will and testament should be reviewed by a qualified estate planning lawyer in the state where you moved.  (Back to Top)

7. How Are The Provisions of A Will Carried Out? 

They are carried out through a California court-supervised process called probate. Typically, the executor named in your last will and testament starts the probate process after your death by filing a probate petition in the court of probate and seeking official appointment as executor of the estate. The executor then takes charge of your probate assets, pays your debts and, after receiving probate court approval, distributes the rest of your probate estate assets to your beneficiaries.

Simpler procedures are available for transferring assets to a spouse or registered domestic partner, or for handling estates with assets under $100,000.

The California probate process has advantages and disadvantages. The California probate court is accustomed to resolving disputes about the distribution of assets fairly quickly through a process with defined probate rules. In addition, the probate judge of the court of probate reviews the executor's handling of each probate estate, which can help protect the beneficiaries' interests in the estate assets.

One disadvantage, however, is that probates are public. Your estate plan and the value of your probate assets will become a public record. Also, because California probate lawyer's fees and executor's commissions are based on a statutory fee schedule, a California probate administration may cost more than the management and distribution of a comparable estate under a living trust. Time can be a factor as well. A California probate proceeding generally takes longer than the estate administration of a living trust. Discuss such advantages and disadvantages with an estate planning lawyer or wills and trusts attorney before making any decisions about how to plan your estate.  (Back to Top)

8. Who Should Know About My Will? 

No one-other than you and the wills and trusts lawyer or estate planning attorney who wrote the last will and testament-needs to know the contents of your will. But your executor and other close friends or relatives should know where to find it. Your original will should be kept in a safe place such as your safe deposit box, your California lawyer's safe, or a locked, fireproof box at your residence or office.  (Back to Top)

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 or entities will be taxed if the net value of those assets is more than $5 million. That amount is subject to change after 2012. For estates that exceed this value significant estates taxes can be saved by proper estate planning. Usually, that planning of the estate must be done before your death and, for couples, before one of you dies. While estate planning generally focuses on estate taxes, planning must also take into consideration income, capital gains, gift, property and generation-skipping taxes as well. You should obtain qualified legal advice from an experienced estate planning attorney about taxes and current tax law during the estate planning process.  (Back to Top)

10. What Other Planning Should I Do? 

• Make a list of your assets and debts. This can be extremely helpful when you are no longer around to provide such information. Make sure that your executor or other family members know where to find the list. Include your bank accounts, safe deposit boxes, stocks and bonds, real estate, and other assets on the list. Also, list the names and addresses of anyone to whom you owe money.
• Make and circulate a list of your professional advisors. Letting your family members and professional advisors know the other professionals who you work with can improve communications and encourage teamwork among your advisors, streamline tasks being done for you, and ensure that the proper people are contacted in the event of your death, sickness or incompetence.
• Set up a durable power of attorney for asset management. In this document, you appoint another individual (the attorney-in-fact) to make property management decisions on your behalf if you ever become unable to do so. The attorney-in-fact would manage your assets and be required to act solely in your best interests.
• Consider preparing an advance health care directive / durable power of attorney for health care. This document allows the person named as attorney-in-fact to make health care decisions for you when you can no longer make them for yourself. It may also contain your wishes concerning life-sustaining treatment, other health care issues, organ donation, burial instructions and your funeral.  (Back to Top)

11. How Can I Find a Lawyer to Write a Will For Me? 

If you do not know an estate planning lawyer who is qualified to discuss your assets and your estate plan with you and to write a last will and testament for you, obtain referrals from someone whose judgment you can trust-a friend or employer, for example.

Or check the listings above for a California attorney in your area.

Some lawyers who work in the estate planning area are "certified specialists in estate planning, trust and probate law." This means that they have met standards for certification set by the State Bar. (Not all lawyers who have experience and expertise in estate planning, however, seek such certification.)

The cost of preparing a last will and testament varies, along with the cost of a durable power of attorney, a durable power of attorney for health care, a living will, or other estate planning documents. It depends on the individual's circumstances and the complexity of the documentation and planning required. Such costs may vary from lawyer to lawyer as well. Some lawyers charge a flat fee. Others charge on an hourly basis or use a combination of both types of fees. 

You may belong to a "legal insurance plan" or, if you have very little income, you may qualify for free or low-cost legal help. Check your telephone directory for a legal aid society in your county. 

Be wary, however, of organizations or offices staffed by non-lawyer personnel. Also, ask yourself whether the estate planning advisor could have an underlying incentive to sell you a particular investment, such as an annuity or life insurance policy.  (Back to Top)