Do I Really Need A Will?

• What Can a Will Do for Me?
• Does a Will Cover Everything I Own?
• What happens if you don't have a will?
• Does a will keep my estate out of court?
• What kind of will should I have?
• Can I change my will?
• Who should know about my will?
• Will my heirs have to pay estate taxes?
• What other planning should I do?

What Can a Will Do for Me?

A will is a written document that says that your property should go to certain people or organizations when you die. With a will, you can name:

• Your beneficiaries--These can be family members, friends or organizations who will inherit your "estate." Your estate consists of your furniture, jewelry, stocks, bank accounts, cars, a business, real estate or anything else that you own.
  
• A guardian--If you have minor children, this is the person who will take care of your children in case you and your spouse die before they become legal adults. The guardian will raise your children and manage their money.
  
• An executor--This is the person or institution who collects your property, pays your debts and any taxes that are due and then makes sure that the rest of your estate is distributed to your beneficiaries.

Does a Will Cover Everything I Own?

No. Some property is not covered by a will. Here are a few examples of things that are not passed on by your will:

• Life Insurance--Money from your life insurance policy goes to the people you designated as beneficiaries on the policy - no matter who is listed as an heir in your will. It is said to pass outside of your will.
  
• Retirement plans--Money from your retirement plan goes to the person you designate as the beneficiary.
  
• Property owned as a joint tenant--If you own real estate, cars, bank accounts and other property with another person or persons as joint tenants, your co-owners will inherit your share. That’s because they have what is called "right of survivorship" which supercedes your will.
  
• Living trusts--Any property that you place in a living trust during your lifetime goes to the people your name as beneficiaries in that trust. A living trust is a way that you can manage your property and investments during your lifetime and then transfer them to your beneficiaries after your passing. (For more information on living trusts, go to our website at www.trust4u.com

Your spouse’s half of community property--In California, any property such as money, California real estate and possessions that you and your spouse acquire during your marriage are called community property. You and your spouse own equal shares of this property, no matter who earns the most. Therefore, you can include only your half of the community property in your will. Property or possessions either partner brought into the marriage - plus gifts and inheritances given to just one spouse during the marriage are called separate property.

Your will may include all your separate property.

Even if your entire estate consists of a life insurance policy, a retirement plan and joint tenancies, you still should consider making a will. If, for example, you win a lottery or inherit jewelry from a friend, your will would cover such unexpected additions to your estate. It also can name a guardian for your children.

Who happens if I don't have a will?

If you die without a will, the state has one for you. That’s because there are pre-written laws that determine who gets your estate. In California, if you are married, your spouse receives all your community property. If you have separate property, then part of that will go to your spouse and part to your children or grand children (if you have any), parents, sisters, brothers, nieces, nephews or other close relatives.

If you are not married, your estate will go to your children or grandchildren, (again, if you have any) - or to your parents, sisters, brothers, nieces, nephews or other close relatives.

If you have no living relatives, the state gets everything you own. People who are not relatives won't inherit anything if you die without a will. So, your friends, former spouse or favorite charity won't get a thing. A surviving member of an unmarried couple also does not inherit.

Does a will keep my estate out of court?

No. Making a will is not a way to avoid "probate" (the court procedure that changes the legal owner ship of your property after your death). The best way to avoid probate is with a Living Trust. See our web page at www.trust4u.com for more information.

Your will is filed with the county court after you die. The court's probate department makes sure it is your last valid will, and then appoints the executor named in your will and supervises the executor's work. If some one challenges your will, a probate judge would decide if that person should inherit any of your property.

Your estate avoids probate only if:

• You left your entire estate to your spouse, or
  
• Your estate is worth no more than $100,000 after your spouses share is paid, or
  
• Your property is held in joint tenancy with another person or is all payable to a named beneficiary (such as the beneficiary you list on a life insurance policy), or
  
• During your lifetime, you put everything you own into a living trust (see #2), so that you own no more than $100,000 in your name at the time of your death.

What kind of will should I have?

In California, there are three ways you can make a will:

A handwritten or holographic will--This is a will that must be completely handwritten. You must date and sign the will. Your handwriting has to be legible, and the will must explain clearly what you are leaving to whom. Remember, your family, friends and a probate judge must be able to understand your exact wishes, so the language you use must be exact.

A will prepared by a lawyer--A lawyer can help you understand the many ways that you can leave your property to your beneficiaries and then actually write the will for you. This is probably the best alternative because a lawyer experienced in writing wills can produce that exact language that a court is likely to understand. Ultimately, a lawyer drafted will is likely to save your beneficiaries time, expense and trauma because it was done correctly.

To ensure a will's authenticity, at least two people who will not inherit from you must see you sign a typed or printed will. These witnesses must sign your will, too.

No matter what kind of will you use, keep in mind that you and your spouse should have separate wills.

Can I change my will?

Yes. In fact, if your will isn't up-to-date when you die, important people in your life may not be provided for. You should review your will every so often to make sure it still does what you want it to do.

You can change your will at any time through a "codicil," which is a legal document that becomes an addition to your will or simply by writing a new will and revoking the old one. You should not change your will by crossing things out and writing or typing changes on it. A codicil is the proper way to make even simple changes such as naming a different executor or a different beneficiary. It needs to be written and witnessed in the same ways that a will is. Most often however, it is easier to make a new will revoking the old one, so as to avoid confusion.

Times to think about making an entirely new will are when:

• You marry or divorce (once you divorce, your ex-spouse will not get any of your estate unless you say so in a new will)

• There is a birth or death in the family

• Your property greatly increases or decreases in value; or,

• The person you name as guardian or executor moves away or dies

Also, if you move to another state, check with a lawyer there to see if your California will is still valid.

Who should I tell about my will?

Other than the lawyer who writes a will for you, no one needs to know what your will says. But your executor and other close friends or relatives should know that you have a will. And, whether you keep the will in a safe deposit box, your lawyer's safe or a fireproof box at home, they should know where to find it when you die. Also, if you add a codicil to your will, be sure to store it with the will.

Will my heirs have to pay estate taxes?

Property that you leave your spouse is not subject to federal estate tax. The rest of your estate also will not be taxed if your net worth at the time of your death is less than $600,000 ($625,000 in 1998 and $650,000 in 1999). 

What other things should I do?

You can do several things now that can help your executor and family later on:

• Create a property list--Help your executor, heirs and family know what you own by making a list of your property and where it can be found. Your list should include your bank accounts, safety deposit boxes, stocks and bonds, real estate and other possessions. Also, write down the names and addresses of your creditors - the people and companies to whom you own money.
  
• Burial Instructions--Let your heirs know in writing if you want to be buried or cremated, if you want to donate organs to a hospital and where you wish to be buried.

Be sure to tell your executor and family about these papers and where you keep them.

Can I include in my will a provision about life support?

No. However, you can do a separate document called a "living will" which will talk about that issue (see "Living Wills").

***Please note that the information on this page is intended to be general information only and is not provided in the course of an attorney-client relationship, nor does it constitute legal advice. This information is not intended to be a substitute for obtaining legal advice from your own attorney.

For further questions about this topic or your Will or Trust, contact:

THE LAW OFFICES OF JAY A. ROSE
20335 Ventura Bou8levard, Suite 410
Woodland Hills, California 9136-24444
818-932-0200
888-99Wills
email: attyrose@99wills.com