Wills FAQs

Wills FAQs

The Importance of a Will in Estate Planning

In the video, Vinny discusses whether a will is enough of a legal instrument to safeguard your family. He notes that since not many people include everything in a trust document, a will is used to set forth the rules of a trust in terms of distribution and who would be in charge.

 

Why do I need a will?

Every adult should have a will regardless of his or her financial net worth. While most people in California use a Trust to avoid probate, a will is still necessary. If you die without a will or a Trust, your property will be distributed according to the intestate laws of your state. Your property will be disbursed to your heirs and family members pursuant to the rules outlined in a statute, which may not necessarily be what you had intended. Thus, having a will and/or a Trust ensures that your personal assets and belongings will go to family members, individuals, or charitable organizations you specifically designate to receive your property. Furthermore, if you have minor children, your will can include provisions to address who will care for and become the legal guardian of your children after your death.

Can I make a handwritten will?

The short answer to this question is yes, but that is never recommended. Each state has different requirements pertaining to what is considered to be a valid will. So long as the requirements are met, a will will be considered valid even if it is handwritten. However, the safer practice is to have your attorney prepare a printed will that is then executed according to your state’s requirements. You can be sure that a professionally drafted will disposes of your property in the way you intended and that it will be accepted by a probate court. A handwritten will may be more vulnerable to challenges.

What are the requirements for a legal will?

Each state has its own statute outlining what is needed for a legal will. However, in general, a will is considered valid, regardless if it is a handwritten or computer-generated document, so long as the following conditions are met:

1. The individual writing the will is of legal age;

2. The individual is of a sound mind or has testamentary capacity. Essentially this means that a person understands that he or she is making a will and further understands the nature and extent of his or her estate and that he or she is disposing of his or her assets upon death;

3. The individual’s intention is to make a will to dispose of his or her property;

4. The individual voluntarily signed the will and was not under duress to do so;

5. The will properly disposed of the individual’s property; and

6. The will was signed and dated in front of two disinterested witnesses. A disinterested witness is not listed in the will as a beneficiary. The witnesses also need to sign the will.

What is the difference between a will and a living will?

A will is a document that allows individuals to specify how they would like their estate to be handled after their death. A living will, on the other hand, is a document that allows individuals to state their wishes pertaining to medical treatment if they are no longer able to make those decisions themselves. In California, most people use an Advance Health Care Directive, which provides for what medical or health care decisions you want to be made for you as well as who will make those decisions. In addition, it allows the health care agent to determine where you will live.

Who can make a will?

Any individual can make a will so long as he or she is of legal age (in most states, 18 years of age) and is mentally competent. In other words, a person needs to know and understand that he or she is executing a will and making provisions for distributing his or her property to designated beneficiaries after his or her death.

Do I have to have a certain amount in assets to make a will?

No. Anyone can make a will (so long as they are of legal age and mentally competent.) The size of a person’s estate is not a factor in who is eligible to make a will. However, if the gross value of your assets exceeds $166,250 ( current as of 2021), then your will will have to be probated in a formal court-monitored process. 

What property passes under a will, and what property does not?

Any property or assets that are titled in your name may pass under your will. Also, property that is titled in your name and with another person as “tenants in common” will pass under your will. Tenants in common is a type of ownership that allows each person to leave his or her ownership interest to specified beneficiaries in his or her will, as opposed to the other co-owner.

Assets that cannot be conveyed to others through a will are assets that “pass over” or “pass outside” of your will. Some examples of these types of assets are:

Property owned as joint tenants (this property passes directly to the surviving co-owner and can include real estate, vehicles, and bank accounts);

Any accounts for which you have valid beneficiary designations, i.e., life insurance proceeds; retirement accounts, pension plans, or IRA proceeds; some banking and investment accounts (these assets pass in accordance with beneficiary designations );

Any assets placed in a trust (these assets pass under the terms of the trust); and

Personal property items of small value (typically, these are divided in accordance with a personal property memorandum attached to your will or by agreement among your survivors or in accordance with your wishes as stated during your life).

What is an executor, and what does he or she do?

An executor is a person you choose in your will to handle the administration of your estate. An executor is sometimes referred to as a personal representative. His or her job is to carry out your wishes as specified in your will. An executor’s responsibilities include processing the will through probate and distributing the assets of your will to your designated beneficiaries. Specifically, this may entail such responsibilities as making burial or funeral arrangements; paying debts and taxes owed by your estate; inventorying, gathering, and liquidating assets; and even temporarily running a business.

Whom should I choose as my executor?

You should appoint as your executor someone you trust and who is capable of serving. Common choices for executors are spouses, siblings, adult children, or close friends. However, you should keep in mind that people close to you may be grieving, so you should appoint someone whom you can trust to handle your matters during a difficult time. Also, just because a person is close to you does not necessarily mean they are the right person to serve as an executor. You may not name a minor or a person who has been convicted of a felony to serve as executor of your will. Some states may have additional limitations or requirements if you choose someone who is out of state to serve as your executor. Typically, your attorney will suggest that you name an alternate person to serve as executor in the event that the first person you name is unable or unwilling to serve. 

Whom should I choose as guardian for my children?

Choosing a guardian for your children is one of the most difficult decisions a person needs to make when preparing estate planning documents. Two types of guardianships exist; guardian of the person and guardian of the estate. The guardian of the estate is the individual named to manage the money or assets of the child, while the guardian of the person is the individual who steps in to serve as the child’s parent if the parents are no longer living or able to do so. One person can serve in both roles, or you can name a different person for each. You should choose people who share similar values, parenting styles, and goals to you. Also, you may want to consider choosing someone who is young enough and/or physically capable of carrying out your wishes and able to serve as a guardian until your minor children reach adulthood.

Appointing a Guardian for Your Children

In the video, Vinny talks about designating a guardian for your minor children. He emphasizes the significance of formalizing guardianship for those who will assume parental responsibilities when you get incapacitated.

Can I disinherit a spouse?

The only way to ensure that your spouse will be disinherited is if your spouse agrees to it in a written, prenuptial, or postnuptial agreement. Otherwise, most states have a law that protects a disinherited spouse. Some states have laws that protect the disinherited spouse based on the length of the parties’ marriage or whether they have children. Other states have laws where a disinherited spouse may be entitled to a “right of election,” which allows a spouse to take a portion of the deceased’s assets.

Can I disinherit a child?

In order to disinherit a child, you must have a will in place or a trust that specifically disinherits that child. If you die intestate or without a will, your property passes under the rules of intestate succession. Every state has a statute that outlines the order in which a deceased person’s property will pass. Typically, a decedent’s surviving spouse has priority, followed by the decedent’s children and then other heirs. If you have a will, you can disinherit an adult child in every state except for Louisiana, which has some limitations. Few states have rules that limit the extent to which a parent may disinherit a minor child.

If you intend to disinherit a child, you should expressly state this in your will. A simple sentence such as “I intentionally have not provided any provisions under this Will for my child (state name)” will suffice. Expressly stating your intentions to disinherit a child in your will ensures that your wishes are carried out, as most states have laws to protect children who were inadvertently or accidentally left out of the will. Without an express written statement of your intention, the law assumes that you made a mistake and will then include your child in the distribution of your property.

What should I do to prevent a disinherited child from filing a lawsuit?

In the video, Vinny is frank about the numerous good reasons that parents may have for excluding a child. On the other hand, there are countless justifications for the disinherited child to claim they are entitled to a share of the inheritance. He outlines various factors that must be taken into account in order to stop the other side from bringing a lawsuit.

What is a no contest clause?

A no-contest clause is a provision in a will that penalizes any person who challenges your will or portions of your will. The purpose of the clause is to prevent the person who challenges your will from receiving anything under your will. The no-contest clause uses the threat of not receiving any inheritance at all to dissuade beneficiaries from challenging the validity of the will. Many forms of no-contest clauses exist, but one such example is:

“If a beneficiary contests the terms of this Will, including without limitation, filing a contest to this will in probate under [state probate code], that beneficiary shall not be entitled to take any property under this Will, and for all purposes of this Will, that beneficiary shall then be deemed to have predeceased me.”

A similar clause is often included in trust documents as well.

In 2010 a new law went into effect regarding the enforcement of no-contest clauses, which severely limited when no-contest clauses are legally enforceable. First, no contest clauses will be enforced against a direct contest brought without probable cause. A direct contest is one that alleges invalidity on the grounds of forgery, lack of due execution, lack of competence, menace, duress, fraud, undue influence, revocation in certain circumstances, and disqualification of the beneficiary as having witnessed the will or being a prohibited transferee.7 Second, no contest clauses will be enforced against a pleading challenging the transfer of property on the grounds that it was not the transferor’s property at the time of the transfer (a forced election) if the no contest expressly provides, whether or not probable cause for the pleading exists. Finally, no contest clauses will be enforced against filing or prosecuting creditors’ claims, whether or not probable cause for the claim exists, if the no-contest clause expressly so provides.

What is a residuary clause?

A residuary clause is a provision in a will that expressly disposes of any remaining estate property that was not distributed in the other provisions of the will. The residuary estate is the property that remains after all claims against the estate have been satisfied and all the specific gifts and bequests have been made. The residuary clause, therefore, provides for a specific person or multiple persons to receive this remaining property. The clause also covers assets or property that were acquired after a will was created. Without a residuary clause, any remaining property (the residuary estate) will be divided in accordance with state intestate laws.

Can I leave money to my minor children in my will OR TRUST? 

Can I set up a trust for my minor children?

The answer to both of these questions is yes. Money that is left for minors in a will be governed by the Uniform Trust To Minors Act; because a minor cannot be on a title or manage business or accounts in his or her own name. However, the child will then be entitled to receive all of the money in that trust when they turn 18. A much more prudent solution is to establish a trust for your children, which will name a person of your choice to be in charge of managing that money in making distributions to the children until such time as you decide it is appropriate for them to receive their inheritance.

How do I make changes to my will?

You can make changes to your will through a few different methods. Each state has different provisions or requirements, so it is best to consult with an estate planning attorney in your state (or with my firm) to ensure that your changes do not void your entire will. In some states, crossing out provisions and making handwritten changes could void your entire will.

One method of changing a will is by attaching a codicil. A codicil is a formal amendment to a will. It is a document that allows you to partially modify or revoke portions of a will. With a codicil, you can make simple changes to a will while leaving all the other provisions the same. It is signed and prepared in accordance with the rules pertaining to wills in each state.

Another method of making changes to your will without having to redo the entire will is by making changes to a personal property memorandum that is attached to the original will. This document will work so long as your original will references a personal property memorandum.

In some circumstances, it may be easier to write a new will altogether and revoke your original will.

Where should I keep my will?

After you have your will properly executed in accordance with the laws of your state, you should keep your will in a safe and accessible place. Make sure you let others, particularly the person you have appointed to be the executor of your estate, know where your will is located. If you choose to place your will in a safe or fire and waterproofed box in your home, make sure you have provided others with the combination and location of the box. Placing your will in a safety deposit box at a bank could create additional challenges and delays after your death, as often, an individual will need a court order to retrieve the contents in your safety deposit box. One solution to this problem is to have a safety deposit box in your name jointly with another individual. In addition, if you had your will prepared by an attorney, your attorney should also have a copy of your will and any other documents the attorney prepared for you.

What happens to my will after I die?

After you die, your will must be submitted to probate. Usually, the person whom you have named as the executor of your estate or your personal representative will submit your will to the court. Once your will is filed with the probate court, it becomes a public record.

Consult a Wills Attorney in San Diego, CA

If you have any questions about estate planning, especially about wills, don’t hesitate to consult with one of the best estate planning attorneys in California, Attorney Vincent Casiano. He will gladly help you create the best estate plan for you and your family. Schedule a consultation today!

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With years of experience in Elder Law and Estate Planning, San Diego estate litigation attorney Vinny Casiano helps his clients understand the pros and cons of each strategy to make the best decision for themselves and their families. Finally, he assists his clients in carrying out whatever strategy they have decided is best for them.

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