What is a Will?

by | Apr 26, 2018 | ESTATE PLANNING | 0 comments

A will is a legal document that allows you to provide specific instructions for distribution of your assets and can be used to pre-select guardians, if you have children.  Wills have been used as a way for people to distribute property and name guardians for their children since ancient times. Wills became popular in ancient Greece[1], around 800 B.C., and they still remain a popular method of achieving your wishes post-mortem.  It is a powerful legal document that allows a person to carry out their wishes from beyond the grave.

In California, if you die without a will, your assets will pass through the laws of “intestate” under the Probate Code.  The intestate laws determine who will inherit your property based on surviving heirs and family members.Most people do not want the laws of the State to determine who should inherit their assets.  If you die without a will, and your only remaining heir is a brother you never liked, then that person will inherit everything you have left behind!  If you want to select who will own your assets once you die, then you should get a will in place immediately.

Following are some of the post-mortem requests that a will allows you to control:

Beneficiaries.

These are the people that will inherit your assets when you die.  You have the power to determine who will “benefit” from your will. Your beneficiaries can be your family members, friends, spouse, domestic partner, coworker or a charity organization. You can leave all assets to one person, split assets among many people or provide a specific amount to leave for each person.   You also have the power to leave specific items to certain beneficiaries, such as jewelry, electronics, money, real estate, vehicles, and collectibles.

Executor.  

The executor is the person you name to “execute” your wishes after you die.  This role is very important and includes the job of tracking down your assets, paying debts and taxes, and distributing your assets to the named beneficiaries according to your wishes.  Most executors are immediate family members, with spouses, children and parents being the most common named in a will.

Minor Child(ren) Guardian.

You may name a person to be legally responsible for your child(ren)’s daily care if you and your child(ren)’s other parent die before the child(ren) reach the age of 18 years old. You may also name a guardian, the same or a separate person, to be responsible for managing any assets you leave for the child(ren) until they reach the age of 18 years old.

It is, however, important to keep in mind that a will does not cover a way to disperse all of your assets. Rather, it is only one piece of a larger estate planning process.  In California, many people chose to execute a living trust along with a will.  The living trust can provide a number of legal benefits, including avoidance of the probate process and dispersal of personal funds and belongings.  In addition, a “pour-over” will allows you to include your wishes and “catch” any assets that may have been left out of your living trust agreement. This allows your personal assets to be distributed outside of probate court and through your trust.

Whether you have a small or large estate, it is important to keep your intended beneficiaries protected. Emotions usually run rampant when a loved one passes, and the state’s normal probate process can exacerbate pre-existing worries. A proper estate plan will not only fulfil your post-mortem wishes, but also save your beneficiaries the time and stress of a court proceeding following your death. If you don’t have an estate plan in place, contact an estate planning attorney today to assist in having your wishes memorialized.

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[1]Williams, James (1911). “Will“. In Chisholm, Hugh. Encyclopædia Britannica28 (11th ed.). Cambridge University Press. pp. 654–658.