What Happens Before, During, And After You Make a Will and Testament
Updated: Jun 5
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You have an estate, believe it or not. Almost everyone does, in truth. Your estate includes everything you own, including your car, house, other real estate, bank accounts, investments, life insurance, furniture, and personal belongings. Everyone has an estate, no matter how big or small, and they all have one thing in common: they can't take it with them when they die. Consider one of our prescreened California Lawyers in your California Attorney Search.
When that happens, you'll definitely want to have a say in how those items are distributed to the individuals or organizations that matter most to you. You must have orders specifying who you want to receive something from you, what you want them to receive, and when you want them to receive it in order for your wishes to be fulfilled. Of course, you'll want to pay the least amount of taxes, legal fees, and court costs possible. Despite the value of making an estate plan, statistics show that only about half of all Americans have one. Now is the time to sit down and build your own estate plan if you haven't already.
Many people believe that estate planning is limited to the creation of a will. However, estate planning may also include environmental, tax, medical, and business considerations. The complexities of the estate, Medicaid, and tax planning are numerous. The solicitor must have a detailed understanding of not only probate law, estate management, trust, wealth security, and Medicaid laws but also income tax, estate tax, gift tax, generation-skipping tax, and excise tax laws. Both of these factors are intertwined and have an effect on your estate plan.
What is the difference between a Last Will and Testament and a Living Trust?
A Last Will and Testament is a legal document that expresses an individual's desires about his or her estate properties and what should be done with them after the Testator (Will's creator) passes away. Gifts made in a Will can be general or personal, and they can go to as many people as the Testator wishes.
A Will is the only way for a parent of a minor child to name who they wish to serve as Guardian for the minor child if one is ever required, in addition to serving as a means for making gifts of estate properties. A Will is ideal for people who do not own any real estate and have a total estate value of less than $150,000 in California. If such properties are present, a Would will almost certainly need to be conducted after death in a costly and time-consuming legal process known as probate.
When people are asked why they do not have an estate plan, one of the most popular responses is that they believe they do not need one yet. They believe they are either too young or too rich to need a plan. Regardless of age, marital status, or net worth, every adult will profit from getting an estate plan in place. Executing a Will, at the very least, guarantees that the State of California does not decide what happens to your estate properties and protects your loved ones from being entangled in expensive and contentious lawsuits after you pass away.
What are the benefits of having a final will and testament?
There are several different forms of wills available to you, but they all have the same goal in mind: to secure your assets after you die. The sort of will that is most appropriate for you is determined by your circumstances and the type of property you wish to pass. James B. Church & Associates in Redlands will help you evaluate your assets and make the best decisions possible, as well as create a strategy that prevents your heirs from contesting a will or trust later.
Whatever form of will you choose, you must complete the following tasks:
Assign an individual to be the executor.
A will names the executor or the individual in charge of executing the will and ensuring that assets are distributed according to the will's creator's wishes.
Make a guardian appointment.
A will appoints a guardian for the creator's minor children and allocates funds to meet their needs.
Beneficiaries should be named.
A will's main aim is to appoint the people who will inherit the properties of the signer. If assets are to go to anyone other than immediate family members in California, they must be guided.
The cornerstone of any estate plan is a Last Will and Testament; however, most plans include a variety of additional estate planning resources and techniques tailored to the creator's unique needs and wishes. The following are some common additions to a comprehensive estate plan:
Planning for incapacity
At any moment, incapacity will hit. You have no power over who makes life or death decisions for you if you refuse to prepare for the likelihood of incapacity. You also give up the power of who would manage your estate if you become incapacitated.
Planning for long-term treatment
When you get older, the chances of winding up in a long-term care facility increase. Unless you plan accordingly, long-term care expenses will wipe out a lifetime of hard work and savings.
Planning for the future of a business
If you run a small family farm, a small online business, or have a stake in a multi-national corporation, the future of your company is likely important to you. If you have a corporate succession plan in your overall estate plan, you can rest assured that your company will be run according to your wishes in the event that you pass away or become incapacitated.
Planning for those with special needs
You must prepare for your special needs child's future if you have one. You must be vigilant of assets you want to leave for your child's benefit if you want them to benefit from much-needed assistance services like Medicaid and SSI. This usually necessitates the establishment of a special needs trust.
Preparing for Medicaid
The Medicaid program will assist with the high costs of long-term care; however, to qualify for coverage, you must meet the program's income and wealth thresholds, or you will be required to deplete your own assets before Medicaid will kick in and start covering costs. A well-thought-out Medicaid strategy will help you secure your hard-earned assets while also ensuring that you are eligible for coverage when the time comes.
Probate and tax evasion are two topics that come up often.
Probate avoidance is a common estate planning aim because it saves both time and money for your heirs. Similarly, your estate plan will provide a variety of tax avoidance techniques aimed at lowering your estate's exposure to gift and estate taxes, allowing you to leave more money to your loved ones.
What Happens If I Don't Have a Will?
If you don't have an Estate Plan or a Living Trust, your loved ones would almost certainly have to go to probate court to fight for their rights—not only to your home, but also to your bank accounts, savings, and perhaps even guardianship of your minor children and other dependents.
They will be forced to stand by your bedside and fight for who will take care of all those aspects of your life, as well as who will make health and end-of-life decisions for you if you're still alive but incapacitated. When one of your loved ones goes to court for one of these causes, it normally ends up being very expensive. It's a significant sum of money. Frequently, this comes with months, if not years, of everyone's time. Not to mention the fact that even the closest family relationships can be shattered along the way.
Is it possible for my children to make an estate plan for me after I pass away?
It's too late to make an estate plan after you become terminally ill or die. Your children won't be able to make a contingency if you die or become incapacitated.
Only you, and only while you are alive and coherent, can make an Estate Plan and create a Living Trust. Your wishes, which you thought "everyone knew," would possibly have no legal weight without the carefully prepared, completely signed, and observed documents in a complete Estate Plan. This is something you could do right now.
Is a Will Enough for an Estate Plan?
A Last Will and Testament are not an Estate Plan in California, and it isn't even a legally binding text! In fact, a Will is nothing more than a letter voicing your wishes to a probate judge. You will never meet the judge who will make the final decision. A Will, on the other hand, does little to explain what happens if you become mentally ill.
Your heirs would most likely need to spend a lot of money on attorneys, court costs, and likely 6-18 months in probate if they only have a Will, which they might have made by downloading some sort of California Last Will and Testament Template. There would have been no tax preparation, which might spell catastrophe for your descendants.
What Does a California Estate Plan Include?
A complete California Estate Plan is a collection of documents that typically includes a Living Trust, a Pour-Over Will, Durable Powers of Attorney for Property and Healthcare, a "HIPAA" authorization, a Living Will/Advance Healthcare Directive, Deeds to your properties, Beneficiary Designations on life insurance, annuities, IRAs, 401(k)s, Guardian Nominations for your minor children, and a Living Will/Advance Healthcare Directive.
Both of these records must be signed and meticulously archived so that they can be searched in the event of your death or incapacitation. Some will be traditional California estate planning forms, but the majority will be tailored to your specific needs. After the papers are signed, the Living Trust must be funded, and your financial institutions' forms must be revised.
The Holographic Will
In California, holographic wills are legal, but they must meet certain criteria. Wills that are handwritten and signed by the testator is known as holographic wills. The will is valid in California if the dispositive clauses are written in the testator's handwriting and signed and dated by the testator, who must be at least 18 years old and of sound mind. It is not necessary for the will to be notarized or for witnesses to be present and sign the will.
Being of sound mind implies that the person possesses adequate mental capacity to comprehend the essence of the testamentary act. In addition, the individual must be able to comprehend and recall the existence and condition of his or her land. Furthermore, the individual should remember and understand his or her relationship to his or her descendants, spouse, parents, and others who may benefit from the will.
Furthermore, the testator must not suffer from a psychiatric illness characterized by symptoms such as delusions or hallucinations, which may lead him or her to devise property in ways that he or she would not have done if the delusions or hallucinations were not present.
If someone who knew the testator and had intimate knowledge of the testator's handwriting may testify that the will was written by the testator, the holographic will can be admitted to probate.
What do I do if I want to make changes to my California Will and Testament?
A California will and testament may be modified at any time if the Will maker (testator or testatrix) so desires. The State Bar of California recommends that a Will be reviewed and revised whenever the clauses in your Last Will and Testament no longer reflect your desires, no longer extend to your case, or if you are married and your marriage is dissolved, or guardianship for your children is no longer needed.
Codicils must be drawn up in compliance with the same state laws that govern wills. The original document is referenced in a Codicil to a Will, and the changes you're making are stated. Rather than using a Codicil, it is always preferable to write a new Will. This is simple to do if you go back to the same Estate Lawyer who made your document.
Crossing out terms or sentences, making notes in the margins, or making some other correction or alteration in your California Will is never a good idea. Your Will will be deemed void if you do so.
Never, ever hold old Wills with your new Will; the old Wills should be discarded after your death to prevent any misunderstanding. If they are held and presented in court during a Probate, the Judge will conclude that the testator or testatrix was unsure of how to dispose of their estate and did not kill the old Will.
What is the procedure for revoking my will?
Any of the following will cause a California will and testament to be revoked:
Creating a subsequent Will that explicitly or implicitly revokes all or part of the prior Will, or by using different words in the subsequent Will that clash with the prior Will.
Being charred, ripped, canceled, obliterated, or demolished by either (1) the testator or (2) another individual in the testator's presence and at the testator's direction with the intent and for the purpose of revoking it.
The Probate Process is a court-supervised procedure that includes the following features:
an orderly transfer of tile for the estate of the deceased;
ensures creditors are notified, given the oppo