Why do I need a will?

Generally, if your total assets are less than $100,000, a will may suffice.  A will allow you to decide who will receive what you own after you die. If you don't have a will, your estate will be distributed as required by the California Probate Code. In other words, the Probate Code says who will receive your estate if you do not have an estate plan. If there is no estate plan, usually the decedent's nearest relatives will inherit the estate. Perhaps the decedent would have wanted it this way, but if he or she wanted to make a gift to other relatives, to someone outside of the family, or to a charity, it won't happen unless the decedent had an estate plan.

 

Nomination of executors: 

 In addition to distributing your estate, a will can nominate an executor, who is the person who will be in charge of administering the estate. If you don't have a will, state law provides which person has the highest priority to become the executor.

 

Nomination of guardians:

A will also can nominate guardians for your young children. This nomination provides valuable information to the court that will determine who the guardians will be. The probate of the will and the appointment of guardians are done in two separate court proceedings. If the will nominates a guardian, that nomination is one of many factors that a judge will consider during a guardianship proceeding. The nomination of a guardian in a will is important because it may be the only reliable evidence of who the decedent wanted as guardian.

 

Does a will have to go through probate?

If the decedent owned less than $100,000 in probatable assets, the will probably will not be probated. California law provides for "summary probate," which allows the executor to avoid going to court for most smaller estates. The executor submits affidavits to the institutions holding the assets, receives the assets, pays the estate expenses, and then distributes the balance of the estate to the heirs. Estates of less than $100,000 can be probated if necessary, such as in cases in which the estate is insolvent.

 

Is a will needed if I have a living trust?

Yes. The type of will used with a trust is called a "pourover will," and its function is to "pour" assets into the trust if the assets were not transferred to the trust prior to the death of the decedent. The primary distribution of assets through a pourover will is to the living trust, not to the beneficiaries of the estate. The result is that the assets that should have been transferred to the trust before the decedent's death will be transferred to the trust after the death and then distributed in accordance with the provisions of the living trust. The main drawback is that if those assets total more than $100,000, a probate will be required to make the transfer to the trust.

 

What is a codicil?

A codicil is an amendment to a will.  It takes part of the will and changes it, but leaves the rest of the will intact.

 

Will or Trust?

If upon your death, your total assets exceed $100,000, a trust is usually a better alternative.  For more discussion, see trusts...