Your will is a legal document in which you give certain instructions to be carried out after your death. For example, you may direct the distribution of your assets (your money and property), and state your choice of guardians for your children. It becomes irrevocable when you die. In your will, you can name your beneficiaries (family members, friends, spouse, domestic partner or charitable organizations, for example), a guardian for your minor children, and an executor.
Keep in mind that a will is just part of the estate planning process. And whether your estate is large or small, you probably need an estate plan.
No. Generally speaking, your will affects only those assets that are titled in your name at your death. Those assets that are not affected by your will include life insurance, retirement plans (including a 401(k)), assets owned in joint tenancy with right of survivorship, transfer on death accounts, assets in a living trust, and your spouse or domestic partner’s half of the community property. These assets are distributed to whomever you have designated as beneficiaries of each asset — no matter who the beneficiaries under your will may be.
Even if your entire estate consists of assets held in joint tenancy, a life insurance policy and a retirement plan, there are still good reasons for making a will. For example, if the other joint tenant dies before you do, then the property held in joint tenancy will be in your name alone and subject to your will. If named beneficiaries die before you do, the assets subject to a beneficiary designation may be payable to your estate. If you receive an unexpected bonus, prize, refund or inheritance, it would be subject to your will. And if you have minor children, nominating a guardian for them in a will (or, preferably, a separate legally binding document) is very important.
If you are not married or in a registered domestic partnership, your assets will be distributed to your children or grandchildren, if you have any — or to your parents, sisters, brothers, nieces, nephews or other relatives. If your spouse or domestic partner dies before you, his or her relatives may also be entitled to some or all of your estate. Friends, a nonregistered domestic partner or your favorite charities will receive nothing if you die without a will. The state of California is the beneficiary of your estate if you die intestate and you (and your deceased spouse or domestic partner) have no living relatives.
Yes. There are holographic and statutory wills. Both have strict requirements to ensure that they have the desired effect, and not unintended consequences. You should consult with an attorney to figure out which is best for you. However, no matter what kind of will you use, the will should be solely yours and not a joint will with your spouse, registered domestic partner or anyone else.
Also, keep in mind that your will is not a living will. The term living will is used in many states to describe a legal document that states you do not want life-sustaining treatment if you become terminally ill or permanently unconscious. In California, advance health care directives and durable powers of attorney for health care decisions are used for that same purpose.
Having a will in California allows you to control where your assets go. If you do not have a will, then your assets will go to your natural heirs through a process called “intestate succession.” By creating a will, you can bypass the natural distribution and decide who your assets will go to. However, even if you have a will your assets will still have to go through probate. Only by executing a trust will you avoid probate.
You may make a provision in your will for your assets to be distributed to a trust upon your death. When trusts are created under a will, they are known as testamentary trusts. With an appropriate beneficiary designation, testamentary trusts can even be beneficiaries of life insurance policies and retirement plans.
If you have a living trust, (that is, a trust established during your lifetime) then your will is often referred to as a pour over will. Such a will includes instructions to transfer all remaining assets (assets that were not transferred to your living trust during your lifetime) to the living trust at the time of your death.
For relatively small gifts to beneficiaries who are minors, you might also consider providing for transfers from your estate to a custodian or your guardian, under the California Uniform Transfers to Minors Act.
Yes. You should review your will periodically. If it is not up to date when you die, your estate may not be distributed as you wish.
Your will can be changed through a codicil, which is a legal document that must be drafted and executed with the same procedure that applies to wills. A codicil is an amendment to your will. You must not change your will by simply crossing out words or sentences, or by making any notes or written corrections on it.
You may also establish a new will and, in doing so, revoke your old will. If you get married or divorced, or establish a registered domestic partnership or terminate one, you should seek the advice of a lawyer and make a new will. You should also review your will when there are any other major changes in your family (such as births and deaths), when the value of your assets significantly increases or decreases, and when it is no longer appropriate for your proposed guardian or executor or testamentary trustee to act in that capacity.
If you have moved to California from another state and have a will that is valid under the laws of that state, California will honor its validity. However, it is important for you to review your out-of-state will with a qualified California lawyer, since California law will govern the probate if you live here at your death. Conversely, if you move out of state, your California will should be reviewed by a lawyer in your new state.