Planning Your Estate – Part 9

Fundamentals of wills

A will is a legal document which directs how a person’s property should be distributed after his/her death. Within this document you designate your executor (the person who will handle your assets and ultimately make distributions per your instructions) and your beneficiaries (the person or entities which will receive gifts from your estate).

You must be 18 years of age and of “sound mind” to create a valid will. You must know what a will is, what it does and that you are making one. You must understand the relationship between you and those who you would normally provide for in your will, such as your spouse or your children (this does not mean you must provide for these individuals). You must also be able to understand the kind and quantity of property you own and how you wish to distribute it.

A will should be sufficient for your estate planning:

• if the total value of your assets at the date of your death is less than $150,000 not including any asset that has a beneficiary provision and any asset that is in joint tenancy (or other multiple tenancy).

• if the value of your real property at the date of your death is less than $50,000

Dying without a will

If you die without a valid will, money and other property you own at death will be divided and distributed to others according to your state’s intestate succession laws. These laws divide all property between the relatives who are considered closest to you according to a set formula and it completely excludes friends and charities. Furthermore, these legal formulas often do not mirror most people’s wishes.

Also, if you have minor children, another important reason to make a will is to name a personal guardian to care for them. This is an important concern of most parents who worry that their children will be left without a caretaker if both die or are unavailable. Intestate succession laws do not deal with the issue of who will take care of your children. When you don’t name a guardian in your will it is left up to the courts and social service agencies to find and appoint a personal guardian.

The court makes the final decision when appointing a guardian for your children after your death but the court will usually accept your nomination. A guardian’s legal responsibility is to provide for your child’s physical welfare.

Carrying out the provisions of your will

The process by which the provisions in your will are carried out following your death is known as “probate.” Probate is the court-supervised process developed under California law which has as its goal the transfer of your assets at your death to the beneficiaries set forth in your will and in the manner prescribed by your will. It also provides for the relatively quick determination of the validity of any claims by creditors against your assets at your death.

Probate is usually a long, expensive and burdensome process that can be avoided by using a living trust, which is described in previous articles of this series. A probate has advantages and disadvantages. The probate court is accustomed to resolving disputes regarding the distribution of your assets in a relatively expeditious fashion and in accordance with defined rules. In addition, you are assured that the actions and accountings of your executor will be reviewed and approved by the probate court.

Disadvantages of a probate include its public nature; the provisions of your will and the value of your assets become a public record. Also, because probate court fees, lawyers’ fees and executors’ commissions are based upon a statutory fee schedule, the expenses may be greater than the expenses incurred by a comparable estate managed and distributed under a living trust. If your probate is not complex, however, you may be able to utilize the services of a registered Legal Document Assistant to prepare your probate paperwork saving the statutory lawyer fees. Time can also be a factor. Often distributions to beneficiaries can be made pursuant to a living trust more quickly than in a probate proceeding.

Charlotte L. Ruse is a Kern County registered and bonded Legal Document Assistant (LDA), serving Kern County for 12 years by providing affordable self-help legal document preparation and Notary Public services. Kern County LDA #95 EXP. 10-1-17. I am not an attorney. I can only provide self-help services at your specific direction.