You may have noticed that throughout this site we recommend an Estate Plan and not just a Will. Actually, so does the California Bar Association. Let’s look at what a Will is and how far it can go to serve you in the State of California.
What is a Will?
A Will is a set of instructions to be carried out after your death. It is your opportunity to designate a beneficiary for your own personal items and assets.
In your Will you can:
- provide instructions for the distribution of your money and property, naming your desired beneficiaries — family, friends, your significant other, or organizations — as the recipients of your specific possessions whether for the smallest item or the largest sum or bank account contents
- name a care guardian and/or financial guardian for each of your under-18-year-old children in case you and your child’s other parent die
- name an executor — a trusted person or institution — to handle financial issues for you after you are gone
What doesn’t a Will cover?
Remember that when you set up your various investment and bank accounts you were/are asked to name a beneficiary or you opted for joint tenant with right of survivorship? In these cases, those named beneficiaries or joint tenants receive the respective asset in which they are named. The same goes for anything that has a Transfer on Death (TOD) order. A Will cannot supersede these designations.
So, a Will does not cover:
- any asset named in your Living Trust
- your IRA if it has a named beneficiary
- your 401(k) if it has a named beneficiary
- your life insurance policy, if it has a named beneficiary. Otherwise, the proceeds will be payable to the estate which then necessitates a probate proceeding.
- bank accounts or stock market accounts that cite a joint tenant or have a named beneficiary
- cars over $150,000 not held in trust or joint tenancy or owned by a company
- real estate properties that have another person on the title with right of survivorship
You can change your Will at any time while you’re alive, but becomes irrevocable upon your death. It’s a good idea to review your Will periodically to ensure that it is up to date with your wishes; ensuring that the people named in your will are still able to carry out their roles, that the recipients are those you still desire, and that the allotments and instructions regarding your children are still appropriate. For this reason, we have created our Maintenance Plan.
Do you have to have a Will?
Although a Will is one of the most commonly known documents in the Estate Planning realm, a Will is not always necessary and it’s not always the best option. An alternative is to have a Trust along with a special Will. Whether a Will is your best option depends on your assets, your Estate.
The downside of having a Will is that a Will must always run through the Probate process. Probate is a very exacting process full of detailed paperwork that must be filed in a timely manner. We have an entire page dedicated to explaining Probate. (And if your Will doesn’t name an Executor, then there is an extra process during which the court assigns someone to Administer the Will.) Often, being an Administrator is so time-consuming and over-whelming that the appointed Administrator turns to experts for help. In fact, Probate Administration is one of the main things clients come to us to perform.
Another downside is that a Will cannot do is provide asset management in the event of incapacity.
The alternative to creating a Will is to create a Trust, aka Living Trust. With a well-written and properly funded Trust covering all necessary assets, you can avoid the Probate process. A Trust also has the benefit of being able to provide asset management in the event of incapacity. We have a full page here dedicated to Trusts, as well. (And a page about Trust Administration, too.)
Will your Will hold up in court?
Anyone can draft a Will. Take a pen to paper and write out your wishes, and there you have it — your own Will. But, will that Will actually work?
We can help your compose your Will so it is it less likely that someone will object it. It is important that your Will be properly drafted so it can be found viable and can hold up in court.
What is Living Will?
A Living Will is not at all like a Will. It’s actually another name for or type of an Advance Health Care Directive. That is, it’s a set of instructions about how you’d like to be treated should you become incapacitated. The State of California does not use the term Living Will, using the Advance Health Care Directive instead.
For more information please see our Advance Health Care Directives page.
We can help you avoid Will Contests
All too often, and even in what appears to be the best of families, arguments happen — and when that argument is over an inheritance or who is to act as an estate’s Executor (which comes along with responsibility but also often a payment), this official Will Contest can turn nasty and costly, eating up the assets you wanted your heirs to enjoy after your passing.
By having us set up your Will and estate properly you can:
- Prevent a child or spouse that feels he/she didn’t get his fair share from contesting the will.
- Prevent arguments over who is to be Executor from turning into a legal will contest most of the time. However, people can always question/challenge the capacity or misconduct of the nominated representative — and we can help you with that issue if it comes up or if you need to bring it up.
- Handle any other concerns, if they are identified in advance.
What if I object to someone’s Will
If you object to someone’s Will, we can help. Contact us. When we meet you can tell us why you object and we can advise you about whether it is viable to contest the Will and on how to proceed.