A will is a legal document giving instructions as to how your assets are to be distributed after your death. A will can also give instructions regarding who you want to be guardian of any minor children you may leave behind.
Basically your will will name your beneficiaries, for example family, friends or charitable organizations, and an executor to carry out your wishes. You may leave specific gifts, such as sums of money or real or personal property to particular persons and/or you may leave all or a percentage of your assets to your beneficiaries.
Executor. The executor you nominate will be responsible for managing your property, paying any outstanding debts and/or taxes, and distributing your assets pursuant to your wishes outlined in your will. Generally, the executor must act with the approval of the court, however, the extent to which court approval is required will depend on the powers given to your executor during the probate proceeding. For instance, your executor may be granted the power to sell your assets without court approval, but will have to seek court approval to distribute the proceeds to your beneficiaries. Additonally, the amount of court supervision required will depend on whether the value of your probate estate is more or less than $100,000.
Guardian. If you have minor children, you may nominate a person in your will to be responsible for those children should you and your spouse die before your children reach the age of 18.
Probate Estate. Only certain assets are included in your probate estate. Generally, assets that are held in a living trust, joint tenancy, community property with right of survivorship, or have beneficiary designations,such as 401(k)s, IRAs, pay-on-death accounts, or life insurance proceeds are not included in your “probate estate.” These assets pass upon death to the designated beneficiary without necessity of a probate proceeding (although the institution may require certain documentation or an affidavit to transfer the funds). Additionally, only the decedent’s one-half of assets held as community property are affected by his or her will.
Intestate Succession. If you die without a will, your assets will go to your heirs according to California law. If you are married, your spouse will recieve all of your community propertyand your separate property will go to both your spouse and your children. If you are not married, your property will be distributed to your children or grandchildren, if you have any, or your parents, siblings, or other close relatives, depending on the circumstances. If you were married, but your spouse predeceased you, his or her relatives may also be entitled to a portion of your estate. Only if you have no living relatives that can be located will your estate escheat to the state.
Requirements for a Valid Will. Ordinarily a valid will in California needs to be in writing and witnessed by at least two disinterested persons. A person is “disinterested” if he or she does not have a stake in the will’s distribution.
Statutory Will. California provides for a “statutory will” to simplify the will making process. This fill-in-the-blanks will can be found in the California Probate Code Section 6240, and is suitable for small estates. This will also requires the signatures of two witnesses.
Holographic Wills. California is one of the few states that recognizes a will as valid, without the need to be witnessed, if all material provisions are in a testator’s handwriting and it is signed and dated. However, caution should be exercised in drafting one’s own will. In many instances it would be better to probate a decedent’s estate via intestacy rather than probate an estate via a poorly drafted holographic will.
Gifts to Caregivers. A word of caution for any of you who would like to reward your faithful caregiver with a testamentary bequest. California law is strongly adverse to uphold any caregiver gift of more than $5,000. If you feel that you would like to reward your caregiver with a gift in your will, make sure you speak with a competent attorney about executing a Certificate of Independent Review as to your capacity and intent to leave the gift.
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