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In Asset Protection

Do I Need a Will?

Why do I need a will?
A will allows you, instead of state law, to decide who will receive your assets after you die. If you don’t have a will, your estate will be distributed as required by the California Probate Code. If there is no estate plan, usually your nearest relatives will inherit the estate. Perhaps you would have wanted it this way, but if you wanted to make a gift to other relatives, to someone outside of the family, or to a charity, it won’t happen unless you had an estate plan.  For a discussion of what happens if you die without a will, see this page:  Intestate Succession

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 will determine which person has the highest priority to become the executor.

Nomination of guardians:
A will also can nominate guardians for your children who are under age 18. 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 $150,000 in probate assets, the will probably will not have to 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 $150,000 can be probated if necessary, such as in cases in which the estate is insolvent. Click here for more information about probate: Probate Click here for more information about avoiding probate: Avoid Probate

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 $150,000, a probate will be required to make the transfer to the trust. Click here for more information about living trusts: Living Trusts

What is a codicil?
A codicil is an amendment to a will.  The codicil should be kept with the original will because both documents constitute the decedent’s will.  Because codicils can be misplaced, clients should consider signing a new will instead of amending their current will with a codicil.