Do I Need a Will in California?
by: Caitlyn Andrijich, Esq.

A common question is whether or not you need a Will in California. The answer? Generally, yes! Everyone should have a Will as part of your estate plan.

What is Will?

A Last Will and Testament is a document expressing a person’s wishes about the disposition of her property after her death.

However, there is often confusion about whether a Will is subject to probate or not.  In some cases, an estate planning attorney will advise clients that they only need a Will based on the total value of their estate.  However, a Will does not protect your assets from being probated.

If you die without an estate plan, it is likely that your estate will need to go through probate.  A probate is a judicial process to administer a decedent’s estate.  The average probate process takes one-year to complete and costs several thousands of dollars in attorney’s fees and court costs.  Instead of spending thousands of dollars from your estate, you can preserve your assets for your family with a simple estate plan.

Intestate Succession

The heirs of your probated estate are determined by intestate succession.  Intestate succession is the order in which your heirs may inherit from your estate and it is determined by statute. The purpose of the intestate statute is to determine which individual(s) are entitled to a share of your estate, which was not disposed of by Will. An “heir” means any person, including the surviving spouse, who is entitled to take property of the decedent by intestate succession under this code. (Cal. Prob. Code § 44). Your intestate heirs are usually spouses, children and/or relatives.  If you do not leave any heirs, your estate will escheat to the state.

Therefore, intestacy statutes govern the disposition of a decedent’s estate who died without a Will and who did not dispose of his or her estate by trust. In California, even if you have a Will, it is likely that your estate will need to go through probate, but you can choose your beneficiaries.  The only way to avoid probate, when your estate would require a probate, is by setting up a trust.

Pour-Over Will

Even when you have a revocable living trust, a will is still almost always necessary.  A “pour-over” will provides that all your assets in your estate should be added to your trust assets and administered and distributed under the terms of your trust. Often some assets are left outside of the trust.  The client may purposely leave an asset out of the trust to distribute immediately to a designated beneficiary or the client may forget to designate a beneficiary at all. In other cases, assets acquired after the initial funding of the trust may never properly transfer to the trust and left in the client’s estate. A “pour-over” will coupled with a revocable trust will ensure that all of the client’s assets are distributed according to the terms of the trust.

Will vs. Trust

A Revocable Trust is a trust in which the settlor, or the person(s) who made the trust, reserves the right to terminate the trust during her life. A trust has both a settlor and a trustee.  The settlor is the person making the trust and the trustee is the person managing the trust.  Within the trust document, the settlor may appoint a trustee to manage the trust, designate beneficiaries, specifically exclude individuals from benefitting from her trust estate and specify instructions for management and distribution of trust assets during and after her life. One common misconception is thinking your estate will not need to go through probate if you have a Will. However, in many cases even when you have a Will, your estate will be subject to probate.

Without the proper documents, your loved ones will require court approval to handle your affairs. In California, if you own real property or have assets whose total value is greater than $150,000, your family will likely be subject to a probate process to gain access to your estate and distribute your assets upon your death.  However, a living trust can help avoid these issues upon your death. 

In some cases, your estate may only require a Will and your estate will not be subject to probate.  A Will based estate plan is also much more affordable than most trust-based estate plans.  Give us a call to determine what is the best estate plan for you. When it comes to estate plans, one size does not fit all.

So Why Do I Need a Will?

Transfer your assets – Ensure your estate is distributed exactly how you wish after you pass away

Your estate will pass to your intestate heirs as determine by statute if you die without a Will.  If you want some or all of your estate to go to a charity, friends or non-relatives, then it is important you state your wishes in your will and trust.

Nominate an executor of your estate

            Designate someone you trust to manage and distribute your estate according to your wishes. You can designate alternate executors in case your primary nomination is unable or unwilling to serve as executor. Your executor will handle the administration of your estate.

Avoid Long Probate Process

A safety net if some assets are not held in the name of your trust or you forget to designate beneficiaries on an account. For an example, if you have a trust but you did not transfer the title of your home into the name of your trust, we can use your Will to show the Court that it was your intent to distribute your home under the terms of your trust. In most cases, we can avoid the extended probate process which may take over a year and settle this issue in a matter of months. 

Nominate guardians for your minor children

            A will may be used to nominate a person or persons to be the legal guardian of your minor children.

Disinherit heirs

            You may disinherit heirs in your will if you want to specifically exclude someone from benefitting from your estate.

How to Execute Your Estate Plan During a Pandemic

We are living in a new world with COVID-19, however, the importance of completing your estate plan has become a more pressing issue.  So, what does that mean for your estate plan?  We can still help you get your estate plan completed. We are continuing to schedule telephone consultations where we will go over your estate planning worksheet and the details of your estate plan custom to your needs and wishes.

We will then send you drafts of all your estate planning documents so that you can thoroughly look through each document in the comfort of your home.  We can send you these drafts by email so there is no contact at all with your documents. Once you review your documents, we can discuss your questions, concerns and changes by phone or video conference.

Schedule an appointment to discuss how we can help you execute your documents in a safe stress-free environment.

Goyette & Associates always offers a free estate planning consultation.

Contact Goyette & Associates at (888) 993-1600 or [email protected].