A last will & testament  provides legal instructions how your estate should be handled after you pass and by whom. If you have minor children, a will names legal guardians to be appointed. Once you pass, the will becomes irrevocable, meaning no further changes can be made by other people to your will.

Typically, there are three different people named in your will:

1. Beneficiaries – the people who are the recipients of your esate
2. Guardians – those who you nominate for your children until they become 18
3. Executors – the person(s) responsible for overseeing your estate

Your will likely won’t dictate the terms of all of your assets.

1. Some of your assets already have beneficiaries listed which will supercede your will’s instructions. These assets include: life insurance, retirement accounts, annuities and bank accounts which may have “transfer on death” or “payable on death”. These assets avoid probate.
2. .Assets, such as bank accounts or real estate, held as joint tenants with rights of survivorship will go the survivor.
3. Assets held as community property between spouses or registered domestic partners will go to the survivor.
4. Assets held in a living trust will be distributed according to the instructions of the living trust.

Executors are responsible for a plethora of tasks, which are covered on the California probate page of this website. Two documents which greatly assist an executor are:

1. Create and maintain a list of assets and debts
2. Create a list of all professional advisors with contact information

Options For Wills

If you choose not to make a will, you will pass intestate and California law will determine the beneficiaries of your estate (and the state of California does not become the beneficiary!)

If you are married, all community property will transfer to the spouse. Assets held as separate property will be split between your spouse and your other family members.

If you are you not married, which includes registered domestic partnerships, assets will be distributed to your closest relatives.

A handwritten will is called a holographic will and it must be handwritten. Any typing on a handwritten will invalidates the will. Handwritten wills do not need notarization or witnesses but a court will often scrutinize a handwritten will closer than statutory will or will prepared by an attorney.

Statutory wills are “fill-in-the-blanks” wills which can be downloaded from the State Bar Website www.calbar.ca.gov and click on Public Services and Making a Simple Will and is ideal for people with smaller estates. Talk to an attorney for legal advice on using this type of will.

A will produced by an experienced attorney likely will cover all contingencies and be least likely of the ones above to cause conflict in your estate from the courts and/or family members.

A will can create a testamentary trust to hold distributions from young beneficiaries until they reach certain requirements, such as the age of 25 or 30. Testamentary trusts can also be used to create life estates for people to use assets during their lifetime, after which are distributed to other beneficiaries, and used for doubling estate tax exemptions for married couples.

Making Changes To Wills

Wills can be changed using a codicil, which is an amendment, which is safer than crossing out old instructions and writing new instructions. Wills can also be revoked and a new will written in its place, a common occurrence if someone becomes married.

Wills From Other States

Wills created in states outside of California that are valid in the state it was created are honored by California. It is still advisable to have a California lawyer review the will to ensure no problems will occur. Consult with an attorney whether probate is best for your estate or if creating a living trust and/or other steps to avoid probate is best suited for your needs and goals.