California Wills Law Firm
A will allows you, instead of state law, to decide who will receive your assets after you die. If you don’t have a will, your estate will be distributed as required by the California Probate Code. If there is no estate plan, usually your nearest relatives will inherit the estate.
In addition to distributing your estate, a will can nominate an executor, who is the person who will be in charge of administering the estate. If you don’t have a will, state law will determine which person has the highest priority to become the executor. An experienced attorney from our California wills law firm will be happy to answer your questions and assist with protecting your assets.
Attorneys Assisting With Asset Protection
A will also can nominate guardians for your children who are under age 18. This nomination provides valuable information to the court that will determine who the guardians will be. The nomination of a guardian in a will is important because it may be the only reliable evidence of whom the decedent wanted as guardian.
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. Because codicils can be misplaced, clients should consider signing a new will instead of amending their current will with a codicil.
A pourover will is like any other will, except that it has only one primary beneficiary, which is the testator’s living trust. The pourover will transfers assets to the trust to ensure that these assets will be subject to the distribution plan in the trust and will also receive the benefit of trust’s tax reduction provisions.
If the probate assets add to up to more than $150,000, a probate is required. If the amount does not exceed $150,000, the assets can be transferred to the trust by using declarations as authorized by California Probate Code Section 13100. Pourover wills also distributes tangible personal property, such as furniture, jewelry, clothing, etc., to the testator’s beneficiaries. It nominates executors and guardians for the testator’s minor children.
The pourover will also revokes prior wills. The pourover will might include other provisions such as tax allocation clauses.
Do-it-yourself wills are very risky. However, the state of California has a free will form. This will requires two witnesses and is limited in its scope, but can be useful in many situations. (If you are going to use a form will or trust, consider reading the relevant sections of the California Probate Code, which is the official source of information about the requirements for a valid estate plan.)
One type of do-it-yourself will is the holographic will, which must be in the testator’s handwriting (in other words, not typewritten or printed). The testator must sign it, but unlike other types of wills, no witnesses are required. A holographic will also should be dated, although the Probate Code does not mandate this. Courts have been lenient in trying to interpret holographic wills when questions arise, but judges will not rewrite a holographic will to make it valid.
You should also consider the possibility that one or more of the persons mentioned in your will might not survive you. Each bequest either should have an alternative recipient, such as the original heir’s children, or the bequest should “lapse” if the heir does not survive you. All heirs should be adequately identified by name and/or by relationship to the testator, and charities and other institutions should be described by their full name and address.
The executor of the will is the person who will manage your estate after you have passed away. Generally the person or persons nominated as executor will be appointed as executor by the court, but if you do not propose an executor in your will, the court will rely on state law to make the choice (Probate Code Section 8461).
In California two witnesses are needed for a will that is not a holographic will. The Probate Code provides that the witnesses must watch the testator sign the will and then each witness must sign a statement in the will saying that the witnesses saw the testator sign the will. The witnesses also must understand that the document is the testator’s will. The witnesses should not be related to the testator nor should they be beneficiaries of the estate.
The notarization counts as only one witness, and the will needs two witnesses. The California Secretary of State’s office advises notaries not to notarize wills unless an attorney advises it.
If the testator’s children are under 18, the will should also nominate a guardian or guardians for them.
The estate plan should also have some provision to retain bequests for children in a trust until they reach a specified age. The age when the trust is distributed to the child can be as young as 18, but many parents prefer that their children receive their inheritances when they are older to ensure that funds will be available for their college educations. The trust should specify whether the child will receive the income from the trust, or whether it will be retained in the trust, and how the trustee can spend the principal on behalf of the child.
Choosing an Executor
The ideal executor is an organized, responsible person with some skill in finances. Typically, this person is close enough to you and your family to know your financial status, your assets, and the family dynamic—including the temperaments and personalities that will be in play when the assets are divided. Selecting a person with strong ties to you adds an extra layer of protection to your will, especially if you have difficult or fractious family members and you are worried that they will cause some sort of ruckus.
In California, your executor that you have named in your will does not need to be a California resident, or a United States citizen. Any legal person can serve as an executor, including a California bank or trust, a friend, a spouse, a child, or a group of people acting jointly. Regardless of who is serving as the executor, the duties and responsibilities are the same. The executor must collect your assets, pay your expenses and your debits, and distribute the remaining assets to your beneficiaries per your will specifications.
Our Marin County wills lawyers recommend that you name a second executor in your will, just in case the first is unable to take over, or refuses to do so. You can also appoint two or more executors to serve jointly, as an extra method of ensuring that your will is properly executed. Although this option distributes the power to more than one party, there is sometimes a risk of a stalemate, if the two executors do not agree on interpretation and execution.
The Probate Code of California’s Constitution details the requirements for making a legal last will and testament, as well as the definition of a “personal representative,” or executor of said will. This representative is granted power under Section 7600, which handles the rules for taking temporary or full-time control or possession of a deceased person’s property.
If a California resident dies without a will or trust, he or she dies “intestate” and the laws of intestate succession are used to determine who will inherit the estate. Determining the heirs of the estate involves answering a series of questions about the person who died — beginning with if he or she was married, if he or she had children, and so on.
If the decedent was not married, the estate is distributed as follows:
- To the decedent’s children, who take in equal shares if they are in the same generation.
- If there are no children or other issue (issue is the legal term for children, grandchildren, great-grandchildren, etc.) living, the estate goes to the decedent’s parents.
- If there are no parents living, the estate is distributed to the “issue of the parents.”
- If there are no brothers or sisters, the decedent’s grandparents will inherit the estate.
- If there are no living grandparents, then the “issue of the grandparents” will inherit the estate (decedent’s aunts, uncles, cousins, etc.).
- If there are no cousins, Probate Code Section 6402 provides that the estate will be distributed to “next of kin in equal degree,” generally meaning more distant cousins.
If the decedent was married, the first question is whether the decedent owned community property, separate property or a combination of the two. The decedent’s community property goes to the surviving spouse, who may have to file a spousal property petition to establish ownership. The decedent’s separate property is distributed as follows:
- The surviving spouse receives all of the separate property if the decedent is not survived by issue, parents, brothers, sisters or children of a deceased brother or sister.
- The surviving spouse receives one-half of the separate property if the decedent had only one child, or issue of a deceased child.
- The surviving spouse receives one-half of the separate property if the decedent left no issue, but left parent(s) or their issue.
- The surviving spouse receives only one-third of the separate property if the decedent left more than one child.
- The surviving spouse receives only one-third of the separate property if the decedent left one child and the issue of one or more deceased children.
- The surviving spouse receives only one-third of the separate property if the decedent left the issue of two or more deceased children.
Accord to federal and state laws, when a spouse dies, the home the couple shares typically passes to the surviving spouse. But if the couple is not legally married, when a partner dies, their home may pass to the nearest relative of the deceased—a child, parent, brother, sister, or other relation—no matter how long the surviving partner has been living there. An unmarried couple runs the risk of losing possessions and property in a similar manner. The laws of survivorship do not provide well for those who have made lifelong commitments, but have chosen to forgo the traditional marital union that goes along with that commitment.
The issue of survivorship is especially problematic for same-sex couples who have only recently been granted the right to marry legally in California. If these couples have not gotten married yet, and tragedy strikes, the surviving partner may be left with nothing, even if they have been with their deceased partner for several years.
To prevent this from happening, our San Francisco wills attorneys at the Evans Law Firm, Inc., recommend getting started early—even if it is a difficult or painful subject to discuss, it is important to plan for the unknown, especially in tenuous legal situations such as an unmarried partnership. Our attorneys will meet with you, and discuss your best options to provide for your partner in the event of your death.
One common method of avoiding the laws of survivorship is to title assets and property in both partner’s names. This is particularly helpful in the case of a shared home. If the home is in both parties’ names, it will automatically pass to the other owner should one party pass away. This prevents complications with family members and relatives who may try to claim property as their own, taking advantage of the fact that their deceased relative was not married. Joint titling gives both partners equal access and rights over possessions during their lives, and in death, maintains the relationship and commitment the couple has shared.
There is no legal requirement in California to have an official reading of the will after the testator has died. California law requires that the will be filed with the Superior Court of the county in which the decedent lived. Attorneys will sometimes send copies of the will to the heirs, but it is unlikely that the attorney will hold a meeting for the purpose of reading the will to the family members. After the will is filed with the Superior Court, it becomes a public document and can be viewed by anyone who goes to the Superior Court and asks to see the file. Convening a meeting for the reading of the will can cause problems if the will does not give equal shares of the estate to family members. If a probate is held, the will is part of the probate file and can be viewed at the Superior Court. If there is no probate, the will is kept in a separate file, but it remains part of the public record.
There is also no official reading of a trust. However, if the trust has become irrevocable due to the death, the successor trustee is required to notify the beneficiaries and heirs of the decedent that they can request copies of the trust and all of its amendments. The trustee can be liable to the beneficiaries for not notifying them that they can request copies of the trust and all of its amendments.