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A will is the most commonly used method of documenting a person’s wishes for the distribution of money and property upon death. The basic requirements for a valid will are that it be in a writing, signed and dated by the “testator” (the person who creates the will), and witnessed by at least two “disinterested” adults. Disinterested for this purpose is someone that is not mentioned as a beneficiary in the will itself, or in trust documents.
There are many options for establishing a will. Before you start to plan your will, you should discuss the various types of wills with your attorney to determine which type of will best suits your needs.
If your estate is valued at less than $100,000 in combined assets, you may only need a “simple” will to distribute your assets. However, if your estate is valued at more than $100,000 in combined assets, or if you have many beneficiaries and complex assets, such as real property, it is in your best interest to speak with an experienced estate attorney.
A “pour-over” will works in conjunction with a trust. The “pour-over” will is a safety net in the event that an asset in your estate has to be probated because it “pours” the asset back into your trust at the end of the probate. So, if you forget to put an asset into your living trust, or if the asset is worth more than $100,000, it will have to be probated. However, your executor will be directed to distribute the money or property according to the terms of your trust, not in accordance with the intestacy laws of California.
A holographic will is created in the testator’s own handwriting. Although holographic wills are recognized in California, they create many problems in probate and often end up disputed by the beneficiaries, especially if the decedent made other wills prior to or after the holographic will was created. Before a holographic will can be probated, the handwriting must first be proven to be that of the testator. The executor must provide a sample of the testator’s handwriting or produce a witness who can swear that they saw the decedent write the will. Also, many people combine a partially typewritten will with handwritten notes. Then the court must determine which is the operative document and if it was properly executed. These are just some of the reasons why holographic wills often fail in probate.
Durable Power of Attorney for Financial Matters
Implementing a power of attorney for important financial decisions will help protect your interests in the face of unexpected events, such as a mental or physical incapacity, whether short or long term. The Durable Power of Attorney for Finances will allow your chosen agent to make financial decisions on your behalf if you become incapacitated, or are unable for any reason to manage your financial affairs.
This will allow any agent, usually a family member, trusted friend, or advisor you nominate, to do things such as:
- Manage your bank accounts
- Pay your bills
- Deal with government agencies
- Fix your taxes
- Ensure that your medical premiums are paid and up to date
Wills & Revocable Trusts
A will is a legal document that provides a mechanism for how your estate is to be handled upon your death, which includes how assets are to be distributed, the guardianship of your minor children and who shall be responsible for handling your estate.
Distributions of Assets – In your will, you can name specific beneficiaries (family, friend, spouse, domestic partner, charitable organizations, etc.) to receive your assets. You may also identify specific items for distribution such as jewelry, automobiles, and specific amounts of money. Your will should also specify what should be done with your remaining assets not disposed of by gift.
Guardianship – Through your will, you can nominate a person or persons to be responsible for your minor child(ren)’s care and well-being should you pass before the child(ren) turn 18 years of age. You can also specify a guardian, who may or may not be the same person, to be responsible for managing assets given to your minor child(ren), until the child(ren) turn 18 years of age.
Executor – Your will allows you to nominate a person who is responsible for collecting your assets, paying any debts, expenses, or taxes due from your estate, and then, with the court’s approval, distributing your assets as specified in your will.
Revocable Living Trusts
A Revocable Living Trust is a legal document that acts as a partial substitute for a will. With a Revocable Living Trust, your assets, such as your home, bank accounts, and investment accounts, are put into the living trust, administered for your benefit during your lifetime, and then transferred to your beneficiaries upon your death. People who own homes and/or have cash and investments assets with a gross value of $150,000 or more need a revocable living trust to avoid the court mandated probate upon their death.
With Revocable Living Trusts, most people name themselves as the initial trustee in charge of managing their trust’s assets. This allows them to remain in control of their assets during their lifetime even though the assets have been put into the trust. A successor trustee, who may be a person or an institution, can be named in the event the original trustee ever becomes unable or unwilling to manage the trust’s assets. A Revocable Living Trust may be amended or revoked at any time by the person(s) who created it, as long as he or she is still mentally competent to do so.
Oral wills have less authority than handwritten wills. First, they’re only recognized in certain states. Second, they usually require a presence of fear of death. These only apply to personal property so there may be other considerations not taken into account.
Joint and Mutual Wills
A joint will and mutual will are the same thing. They distribute the property of two or more people. Most of the time, it’s a married couple signing one will instead of each person having a separate one. Another name is reciprocal will. Simply put, a husband and wife agree to have mutual wills so that if one dies the other receives all or most of the estate of the other spouse.
Conditional and Contingent Wills
Conditional wills only go into effect when a certain act or condition happens. This means something other than the person who wrote the will’s death. This could be a future event not closely related to writing the will, such as attaining a certain age.
A statutory will is one that contains standard terms provided by state law to simplify the process. This will is normally made by using a form that provides the basics of a will, but allows you to fill in the blanks or check off the specifics. A few states have mandatory provisions considered part of the statutory will. In these states, the standard terms are implied, even if they weren’t explicitly written the will.
A codicil is an addition to a will. It’s usually another document and used if you don’t want to write a completely new will. People also add codicils to their will to account for major life changes. A major life change may include a birth, adoption, marriage, death of an heir or the loss of property in the will. The codicil must be witnessed signed just like the original will.
When a person gets married after a will has already been signed, the new spouse is called an after-acquired spouse. Most legal professional recommend that a new will should be written rather than just adding a codicil to ensure that the spouse is included in the will.
Under the general laws of wills, there’s a rule to protect a surviving spouse who’s left out of a will. This rule is called an elective share and allow a surviving spouse to claim a portion of the deceased’s estate regardless of the will’s contents.
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