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Issues With Probate – Part I

No Will? No Way!

Dying without a Will is a bit like playing Russian roulette. It leaves the distribution of your assets to chance.

A Last Will and Testament not only declares your final wishes as to the distribution of your property, it ensures that those wishes are carried out properly. Upon death, a Will is filed with the local probate court, and it is that court’s job to oversee the distribution of your assets as set forth in that document. When you die without a Will, however, the state determines how your assets will be distributed and that distribution is made by a preset formula. Your desires no longer matter.

A Will can provide instructions on many issues, including who should administer your estate (the executor), the designation of guardians for your children, desired funeral arrangements, pro, Issues With Probate – Part Ivisions for the continued care of pets, and the pouring of specified assets into a trust. Matters involving the continued financial support of dependents or a spouse, education of dependents, payment of expenses related to costly medical care, distribution of a business or partnership interest, and spousal or dependents access to checking, savings or other financial accounts to pay essential living expenses, may also be included in a Will.

The goal of a Will is to ensure that your desires concerning your estate are followed as accurately as possible. That makes the appointment of an executor or administrator for your estate critical. An executor performs such tasks as inventorying assets, collecting information on outstanding debts and liabilities, paying debts and taxes, and ensuring that assets are distributed to heirs according to the stated wishes of the deceased. Usually, an estate holder appoints someone they trust to administer their estate. When there is no Will, the court may appoint someone you do not trust and may not know, to handle your estate.

Sadly, a recent study found that up to 92 percent of all adults under age 35 do not have a Will. That same study cited many reasons people avoid preparing a Will, including a belief that a spouse or children will automatically receive any assets left behind, or that a Will is an unnecessary inconvenience. Some claim Wills are too complicated to prepare or that estate planning costs too much. Still others claim the process is too time consuming.

When a California resident dies without a Will, the laws of intestate (without a Will) succession apply. State law, not the estate owner, determines who inherits the estate. For example, under California law, a spouse will receive all of the community property. But if other heirs exist, the spouse will be required to share in the distribution of separate or personal property. In addition, access to financial accounts titled only in the name of the deceased, such as checking and savings accounts, may be frozen until the estate goes through probate. Quite literally, a spouse and/or dependents could be deprived of any financial support, and face homelessness or bankruptcy.

If a resident is not married, the state has a preset formula for the distribution of property, again regardless of the estate owner’s actual desires. Long-term partners or significant others, even those who share a home with the deceased, have no claim on the deceased’s estate. Without a Will, they will receive nothing.

In California, three types of Wills are valid. The most traditional is a written Will prepared with the assistance of an attorney.  Prepared Wills are a clear and concise statement of an estate holder’s desires as to the disposition of property upon death. Because the signature of the testator (the maker of the Will) is witnessed by two independent parties, the document is immediately admissible into probate court.

California also accepts “fill in the blank” Wills, documents most often purchased at an office supply store. This type of Will requires the signature of two non-beneficiary witnesses. Unfortunately, Wills executed in this matter can have two deficits: An incomplete or inaccurate description of property or beneficiaries, and/or the failure to properly follow the legal requirements for executing a legal Will.

Finally, California also recognizes holographic or handwritten Wills, if they are signed and dated, and the handwriting can be proven to be that of the testator. In particular, the instructions regarding the disposition of the estate must be in the testator’s handwriting. The Will cannot be typed. It must be handwritten. This type of Will requires verification of the testator’s handwriting before it will be accepted by the probate court. Most common problems include the legibility of the handwriting, and the completeness of property descriptions and beneficiary designations.

There are three requirements for a valid Will in this state. First, it must be proved that the maker of the Will was of “sound mind” or had “legal capacity” to make a Will. Second, the document must bequeath at least some of the testator’s property to designated beneficiaries. And third, the document must be signed by the estate holder and if required, properly witnessed.

A Will permits you to express your intentions for the disposition of your property after death, and protect the rights of your family or heirs to your estate. It is a simple process, but a very necessary one.

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Walnut Creek, CA 94597

925.943.2740

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