What is a Will and Why Do I Need One?
– Creating a Will is the First Step in Estate Planning –
Are You Ready to Start Drafting Your Living Will?
Making the decision to prepare a Will for your future is a responsible decision. By creating a Will, Testament and other Estate Planning Legal Documents can provide major benefits and relief for you and your loved ones. By proactively getting your affairs in order, you remove future uncertainty about your wishes and can save your beneficiaries time, unnecessary court fees and legal fees after your passing.
When you are ready to begin drafting a will, we are here to guide you through the estate planning process. We offer you years of experience and knowledge creating wills, the cornerstone of estate plans for clients just like you. You and your family can enjoy the peace of mind that your wishes are detailed accurately and legally documented.
While considering the end of one’s life can seem uncomfortable, many clients have expressed relief and confidence that their affairs are in order.
Continue reading to learn more about wills, what can be included in them, and along with other estate planning tools, how they can effectively pass your possessions on to your heirs and beneficiaries. If you would like to know how we can help you create a will, please contact our law firm to schedule a free consultation.
What Is A Will?
In the simplest terms, a will is a legal document in which you, the testator, designates who will manage your estate after you die. Depending on the estate planning tools used, your estate may include a range of assets from high value items to smaller items with sentimental value.
The individual(s) you have chosen to manage your estate is referred to as the “executor;” they will be responsible to execute your will in accordance with your stated wishes. Any person named in the will who will receive all or part of your estate is referred to as a “beneficiary.”
Do I Need A Will?
According to a survey from AARP, 42% of the Baby Boomer Generation do not have any type of will or estate plan in place. The numbers increase to 64% of Generation X and 78% of Millennials who have not started planning for their future. According to our attorney Dan Olsen, “When we talk with individuals about planning for the future they believe a will or estate plan is only needed when they have high value assets that need to be distributed or they simply think they have plenty of time to get around to doing it.”
So, do you need a will? Technically speaking, no. However, according to our attorney Mike Abrate, “The fact is everyone could benefit from creating a will. At the very least, a will is your opportunity to lay out how you want your remains handled after you pass and what should be done with any of your belongings.” While you may have a verbal agreement with family or friends regarding your wishes, without the necessary legal forms in place there is opportunity for a disagreement of what your desires actually were.
Is an Estate Planning Attorney Required to Prepare A Will?
There is no law in place which requires an attorney to prepare a will for it to be legally valid. However, there are many benefits for choosing to seek legal advice from a lawyer who is experienced with estate planning. Legal requirements vary from state to state regarding what constitutes a valid will. Knowing what is required, supporting documents to include, along with common mistakes which can lead to a contested will can all be easily explained by your attorney.
Working with an attorney can also provide additional benefits to you and your loved ones. Our experienced estate planning attorneys have helped families just like yours save time and money while reducing stress, uncertainty, estate taxes, and intrusion of probate courts with the use of estate planning tools. We invite you to learn more about how legal options like Living Trusts and Power of Attorneys can be combined with a will as a well-designed estate plan by contacting our law office today.
“My mother passed away without a will and our family had to endure a long probate process. I didn’t want my children to experience the same frustrations. Mike Abrate gave great legal information about how estate planning basics like a will and living trusts would help my family avoid probate and reduce estate taxes. Hiring a lawyer to write the legal forms I needed was the best decision I’ve made!”
– Debi H. – Sacramento, CA
What Happens If I Die Without A Will?
Without a valid will in place at the time of your death, means you have died intestate. In this situation, your estate will potentially be settled by a Probate Court in accordance with the laws in the state and county where you resided when you passed. Probate administration is the legal process of transferring any assets you have accumulated over a lifetime to any rightful heirs.
Probate court can be a long, costly, and most importantly unnecessary process for your family and loved ones. With no executor named, the court will appoint an administrator to serve as your representative. While a member of your family can petition the court to be appointed, there is a good chance the court will appoint an independent 3rd party administrator. When this happens the administrator, who did not know you, your wishes, or family dynamic, will be required to execute your estate in accordance with local probate laws.
A recent example of dying intestate is music icon Aretha Franklin’s passing. Franklin was survived by her four sons and partner of 30 years. With the absence of a legal will, local laws dictate her estate be equally divided only between immediate heirs, with her long-time partner receiving no part of the assets. According to many reports, this is causing conflict between family members as to Franklin’s wishes for her estimated $80 million-dollar estate.
In addition to the uncertainty of how to distribute assets, the probate process can also require costs which could have been avoided with a valid will and estate plan, including court fees, lawyer fees, and the administrator’s fees. You can read more here about the benefits of avoiding probate.
What Is Included in A Will
The common belief is a will is used only as an estate planning tool for the distribution of your assets, however it can include many more key details about your wishes after passing.
A will provides you the opportunity to establish what assets are distributed to your beneficiaries, and explain why. This can be important if someone believes they may be entitled to assets but was left out.
If you have minor children or dependents at the time of your passing, a will allows you to declare who you wish to become their guardian after your passing. It is not guaranteed the court will follow your wishes; however, it can serve as a legal statement of your desire. With minor children, it is always best to consult with an experienced attorney who can provide legal advice about the laws in your state.
A will also enables you to detail your wishes for how your remains are to be handled after your passing. This can include religious requirements, the desire to be buried or cremated, and who should be in charge of carrying out those plans.
Some assets are not required to be included in your will. These can include certain types of life insurance policies, retirement accounts, and other assets that can pass outside of probate with various estate planning tools. If you are unsure of what you should or are required to include in your will, our experienced estate planning attorneys are available to help guide you through the process in the most efficient way possible. Feel free to contact our office today to schedule a free consultation.
How to Leave Specific Assets to Heirs
If you would like to leave specific assets to different beneficiaries, you should list out the specific items with a detailed description in your will. For instance, if you are leaving your gold diamond ring to Julie. You may have multiple gold rings with a diamond and you may know multiple Julies. To avoid any confusion, you need to provide identifying details about the item and the beneficiary.
Alternatively, a less recommended option is to leave all smaller, more sentimental belongings to one trustworthy person who will distribute them in accordance with your wishes. It is important to consider that this option does not guarantee your intended beneficiaries will receive the assets should your chosen person not honor your wishes. If that happens, there is no legal actions available for them.
In California, a will can include a “Letter of Instructions” for your executor. While not legally required, a letter of instructions can be very helpful in distributing your estate as you intended. It can include contact information for beneficiaries, financial information, pictures of assets for reference, and other essential information.
“The Abrate & Olsen Law Group were so helpful when our parents needed to create a will. They walked us through the whole process and gave us great legal information to help in the future. Our parents now have a full estate plan with a will, living trusts, and a power of attorney. Thanks for all the help!”
– Judy I. – Sacramento, CA
Ensure the Legal Validity, Protecting and Updating Your Will
Ensuring the Will is Legally Valid
Taking the necessary precautions while drafting your will reduces the chance its validity can be contested after your passing. For a probate court to find a will legally valid, it must meet four requirements at a minimum:
- The will must be in written form. This can be accomplished by either typing or hand writing the will.
- The will must be signed and dated by you, the Testator. You must draft and sign the will at a time where you are of “sound of mind” and of legal age.
- The will must be signed by witnesses. California Probate Law requires at least two people witness, at the same time, you either signing the will or acknowledging the will was signed by you. Additionally, the witnesses must sign an affidavit acknowledging your mental capacity.
- The will must identify any beneficiaries. Any beneficiary who you want to receive part, or all of your assets must be clearly identified in the will.
While these are the only requirements from the California Probate Court to create a valid will, there are additional steps to strengthen your will. When working with clients to draft a will we recommend the following:
- Notarize all signatures and include a self-proving affidavit from the witnesses to speed up the probate process.
- Choose witnesses who are not listed as beneficiaries in the will. They are referred to as disinterested witnesses and remove the possibility for a conflict of interest.
- If there is potential doubt to the state of your mental capacity at the time of drafting (signing) the will, you may include a signed report from a doctor stating you were of sound mind at that time.
- Empower the executor of your will to settle any outstanding debts from your estate.
Protecting Your Will
A probate court will likely require the original will before it can begin the probate process. It is important to keep the original copy of your will in a safe place which is easily accessible after your passing. We do not recommend keeping it in a safe deposit box that is only accessible by you. Choosing to keep it in a fire-proof safe in your home is a good option, as long as your executor or a trusted family member has the ability to open the safe.
Updating Your Will
There are many reasons you may need to make changes or update your will including:
- Marriage or Divorce
- Birth of a child
- Removing guardians or representatives for children who become legal age
- Death of a Beneficiary or Executor
- Financial Changes (Buying or selling assets)
No matter the reason for making a change, making changes to an existing will may allow its validity to be challenged. For example, if a beneficiary was removed from the will, the court could agree the change was made after the will was signed and witnessed thereby making it invalid. To avoid confusion and protect validity, we recommend drafting a new will that clearly states your new wishes. According to Abrate, “We recommend reviewing your will every two to three years to make sure it still reflects your wishes and assets.”
Choosing an Executor for Your Estate
When choosing who you will name as the executor of your estate it is important to choose someone who understands how you want your wishes to be carried out. This can be done by a surviving spouse, partner, adult child, or trusted friend. In order to be considered by the probate court as a qualified executor, your selection must meet these requirements:
- Be of legal age
- Be mentally capable
- Be a U.S. citizen (Non-U.S. citizens may serve as a joint executor)
- Not be incarcerated or a convicted felon
You also have the ability to name multiple executors of your estate. When choosing this option, be sure to name people who will be able to work well together. For instance, choosing two family members who do not get along with each other can lead to unnecessary conflicts during the process.
If your estate is complicated, you can choose to name an attorney who is experienced in probate administration as a disinterested executor. Like disinterested witnesses, naming an attorney removes the possibility of a conflict of interest.
Above all, no matter if you choose to name one executor or joint executors, make sure they are willing and able to take on the responsibilities of the position. Once you have made your decision, be sure to go over all the details outlined in the will. Be sure they know where they will be able to find any necessary legal forms, documents, account information, and assets described in the will.
The executor of your will is entitled to receive compensation for their work. If you have named a family member or friend, they may waive their right to compensation. It is important to discuss this with your representative and make note of their decision in your will. The California Probate Code sets the compensation based on a percentage of total gross amount of assets in the estate. The percentage is the same for individuals and attorneys acting as the executor:
- Estates valued under $100,000 receive 4% of the gross value
- Estates valued between $100,000 and $25 million follow this scale
- 4% of the first $100,000 in assets
- 3% of the next $100,000 in assets
- 2% of the next $800,000 in assets
- 1% of the next $9,000,000 in assets
- 5% of the next $15,000,000 in assets
- The probate court will determine a “reasonable amount” for assets exceeding $25,000,000
For estates valued in excess of $25 million, the court will set a “reasonable fee” based on the California Probate Code
Planning for your legacy after you pass is one of the greatest things your can do for your family and loved ones. It gives you the peace of mind you are able to clearly define your wishes and distribute the assets you have spent a lifetime gathering, according to those intentions. When you are ready to begin creating a will, our experienced estate planning attorneys are here to carefully guide you through the process. You can rest assured we will provide you with all the legal advice needed to understand the options available to create an effective estate plan that provides for your heirs.