LAST WILL & TESTAMENT
What is a will?
A last will & testament, more simply known as a will, specifies how you want your assets distributed. It also includes your wishes in regards to who you want as your child(ren)'s guardian and the individual you want to appoint as the executor. The executor is who is held responsible for carrying out your affairs. Creating a will ensures that your family is protected and that your affairs are in order. Instead of having your family deal with the end result, you may want to set up a last will & testament to guarantee everything is taken care of.
If you leave a last will & testament before you pass away, you are said as having died "testate." Your will is then handled through the probate court. On the contrary, dying "intestate" implies that you died without creating a will. Through intestacy laws in California, the court decides how your assets are distributed. They provide your assets to the people closest to you, with the list starting from your spouse to your children to your parents and so on. If there is no one to give your property to, the state then takes it over. In order to avoid the state from controlling your property, create a will with an AK estate planning lawyer
Require-ments for Creating
a Last
Will & Testament
In order to create a will, the will must first be drafted and finalized. Once the document is typed or printed out, you must sign it in the presence of two witnesses. These witnesses must then also sign the will. They are held responsible for witnessing one another sign the document, as well as being there when it is executed. Once this last will & testament is signed by all three parties, it becomes finalized.
*You do not need to have this document notarized. Notarization will not fulfill the witness requirement.
Not sure about whether or not you should create a last will & testament? Without a will, the court then takes full control in the distribution of your assets as well as appoints someone as the guardian of your child. Instead of letting them take over, you may want to consider creating a last will & testament. With this, you are able to maintain control and decide how your affairs are managed.
Creating a will keeps your loved ones safe and protected from any uncertainties that may occur. You can feel at ease knowing who will be responsible for your child in any event that you pass away. At AK Law, we understand that this may be an overwhelming process and we want to help guide you through it.
faq's
What happens if I die without a Will?
If you die without a Will, what you own (your “assets”) in your name alone will be divided among your spouse, domestic partner, children, or other relatives according to state law. The court will appoint a relative to collect and distribute your assets.
What can a Will do for me?
In a Will you may designate who will receive your assets at your death. You may designate someone (called an “executor”) to appear before the court, collect your assets, pay your debts and taxes, and distribute your assets as you specify. You may nominate someone (called a “guardian”) to raise your children who are under age 18. You may designate someone (called a “custodian”) to manage assets for your children until they reach any age from 18 to 25.
Does a Will avoid probate?
No! With or without a Will, assets in your name alone usually go through the court probate process. The court’s first job is to determine if your Will is valid.
What is community property? Can I give away my share in my Will?
If you are married or in a domestic partnership and you or your spouse earned money during your marriage or domestic partnership from work and wages, that money (and the assets bought with it) is community property. Your Will can only give away your one-half of community property. Your Will cannot give away your spouse’s one-half of community property.
Does my Will give away all of my assets? Do all assets go through probate?
No. Money in a joint tenancy bank account automatically belongs to the other named owner without probate. If your spouse, domestic partner, or child is on the deed to your house as a joint tenant, the house automatically passes to him or her. Life insurance and retirement plan benefits may pass directly to the named beneficiary. A Will does not necessarily control how these types of “nonprobate” assets pass at your death.
Are there different kinds of Wills?
Yes. There are handwritten Wills, typewritten Wills, attorney-prepared Wills, and statutory Wills. All are valid if done precisely as the law requires.
Who may use a Statutory Will?
A Statutory Will is based on California law. It is designed only for California residents. You may use the form if you are single, married, a member of a domestic partnership, or divorced. You must be age 18 or older and of sound mind.
Are there any reasons why I should NOT use a Statutory Will?
Yes. This is a simple Will. It is not designed to reduce death taxes or other taxes. Talk to an attorney at AK Law to do tax planning, especially if (i) your assets will be worth more than $600,000 or the current amount excluded from estate tax under federal law at your death, (ii) you own business-related assets, (iii) you want to create a trust fund for your children’s education or other purposes, (iv) you own assets in some other state, (v) you want to disinherit your spouse, domestic partner, or descendants, or (vi) you have valuable interests in pension or profit-sharing plans. This Will treats most adopted children like natural children. You should talk to a lawyer if you have stepchildren or foster children whom you have not adopted.
May I add or cross out any words on a Statutory Will?
No. If you do, the Will may be invalid or the court may ignore the crossed out or added words. You may only fill in the blanks. You may amend this Will by a separate document (called a codicil). Talk to an AK attorney if you want to do something with your assets which is not allowed in a stator Will.
May I change my Will?
Yes. A Will is not effective until you die. You may make and sign a new Will. You may change your Will at any time, but only by an amendment (called a codicil). You can give away or sell your assets before your death. Your Will only acts on what you own at death.
Where should I keep my Will?
After you and the witnesses sign the Will, keep your Will in your safe deposit box or other safe place. You should tell trusted family members where your Will is kept.
When should I change my Will?
You should make and sign a new Will if you marry, divorce, or terminate your domestic partnership. Divorce, annulment, or termination of a domestic partnership automatically cancels all property stated to pass to a former spouse or domestic partner under Will, and revokes the designation of a former spouse or domestic partner as executor, custodian, or guardian. You should sign a new Will when you have more children, or if your spouse or a child dies, or a domestic partner dies or marries. You may want to change your Will if there is a large change in the value of your assets. You may also want to change your Will if you enter a domestic partnership or your domestic partnership has been terminated.
What can I do if I do not understand something in this Will?
If there is anything in the Will you do not understand, ask your attorney to explain it to you.
What is an executor?
An “executor” is the person you name to collect your assets, pay your debts and taxes, and distribute your assets as the court directs. It may be a person or it may be a qualified bank or trust company.
Should I require a bond?
You may require that an executor post a “bond.” A bond is a form of insurance to replace assets that may be mismanaged or stolen by the executor. The cost of the bond is paid from the estate’s assets.
What is a guardian?
Do I need to designate one? If you have children under age 18, you should designate a guardian of their “persons” to raise them.
What is a custodian?
Do I need to designate one? A “custodian” is a person you may designate to manage assets for someone (including a child) who is under the age of 25 and who receives assets under your Will. The custodian manages the assets and pays as much as the custodian determines is proper for health, support, maintenance, and education. The custodian delivers what is left to the person when the person reaches the age you choose (from 18 to 25). No bond is required of a custodian.
Should I ask people if they are willing to serve before I designate them as executor, guardian, or custodian?
Probably yes. Some people and banks and trust companies may not consent to serve or may not be qualified to act.
What happens if I make a gift in the Will to someone and that person dies before I do?
A person must survive you by 120 hours to take a gift under a statutory Will. If that person does not, then the gift fails and goes with the rest of your assets. If the person who does not survive you is a relative of yours or your spouse, then certain assets may go to the relative’s descendants.
What is a trust?
There are many kinds of trusts, including trusts created by Wills (called “testamentary trusts”) and trusts created during your lifetime (called “revocable living trusts”). Both kinds of trusts are long-term arrangements in which a manager (called a “trustee”) invests and manages assets for someone (called a “beneficiary”) on the terms you specify.
What is a domestic partner?
You have a domestic partner if you have met certain legal requirements and filed a form entitled “Declaration of Domestic Partnership” with the Secretary of State. Notwithstanding Section 299.6 of the Family Code, if you have not filed a Declaration of Domestic Partnership with the Secretary of State, you do not meet the required definition and should not use the section of the Statutory Will form that refers to domestic partners even if you have registered your domestic partnership with another governmental entity.
*You do not need to have this document notarized. Notarization will not fulfill the witness requirement.