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What Happens Before, During, And After You Make a Will and Testament

Updated: Dec 19, 2022

The Most Important Steps For Creating Wills In California


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.


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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 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 creating a will. However, estate planning may 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 affect 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?


Several different forms of wills are available to you, but they all have the same goal: 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 allocate 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

The chances of winding up in a long-term care facility increase when you get older. 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, your company's future 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 if you pass away or become incapacitated.



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Planning for those with special needs


If you have one, you must prepare for your special needs child's future. 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 ensuring 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 various tax avoidance techniques to lower 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 and 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 becomes 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. On the other hand, a Will 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 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. The will doesn't need 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 testator wrote the will, the holographic will can be admitted to probate.


What Do I Do if I Want to Make Changes to My California Will?


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 your changes are stated. Rather than using a Codicil, it is always preferable to write a new Will. This is simple to do if you return to the same Estate Lawyer who made your document.

  • Crossing out terms or sentences, making notes in the margins, or making other corrections or alterations in your California Will is never a good idea. Your Will will be deemed void if you do so.

  • Never, ever hold an old will with your new Will; the old one should be discarded after your death to prevent 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 uses 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 to revoke it.


Probate


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 opportunity to make their claims, and are paid;

  • extinguishes creditors' claims if they do not bring their claims to the Probate Court;

  • ensures that the decedent's property is allocated properly to those who are entitled to it under intestacy law or by Will;

A petition is lodged with the court at the start of the probate process, normally by the individual or institution named as executor in your will. Your Will is admitted to probate, and an executor is named after notice is given and a hearing is held.

After that, an appraiser and an Estate Lawyer are named. Probate Fees must be charged to the Probate Court before any property can be distributed. If the market value of your assets exceeds $150,000.00, you will be required to pay a Probate fee. Probate fees are calculated on a graduated scale and are normally charged according to the State Statutory fees governed by the State.

The Price of Probate


Probating a traditional estate is a time-consuming and expensive procedure that ties up the decedent's probate properties. Probate court fees, personal representative fees, attorney's fees, and other miscellaneous fees all add up to a significant amount of money. Probate can take anywhere from one to two years for a relatively easy, uncontested estate. Many take three years or longer to complete. A skilled solicitor would not make costly errors in the probate process that will waste your time. A simple mistake on a court document will result in a six-month or longer delay in probate.

Taxes on inheritance


If the estate is expected to file a federal estate tax return, Internal Revenue Service (IRS) Form-706, the Executor of the estate must file a California Estate Tax Return, Form ET-1. The amount of California estate tax is equal to the maximum permitted amount of the state death tax credit under the applicable federal estate tax statute, according to Revenue and Taxation Code Section 13302.

Intestacy


Creating a Revocable Living Trust with a PourOver Will is critical in California. If you do not do so, you will have a Last Will and Testament made, allowing you to manage the distribution of your personal belongings without going through the probate process.


However, a Will alone will never be enough to disperse your estate without further preparation (unless, of course, you have no bank account or any other financial assets). You are said to have died "intestate" if you die without a valid will, and your property will be divided according to strict California state laws.

The Law of Distribution in Intestacy


If there are no surviving children, the surviving spouse receives 100% of the inheritance; but, if you have children (living or deceased with children), the situation becomes more complicated.

  • When there is a surviving spouse

  • The decedent's spouse receives all of the group property and a portion of the separate property. Kids, grandchildren, parents, grandparents, siblings, nieces, nephews, and other close relatives will receive the remaining separate land.

  • If you're not married

  • Your assets will be divided among your relatives, typically your children, if any are still alive, or your parents, siblings, nieces, nephews, or other close relatives. If you die without a legitimate Will, the court will determine who gets your estate and how it is divided.

In California, how do I appoint a guardian for my children?


The majority of people are concerned about the future of their minor children (those under the age of eighteen). If you have minor children, it is your duty as a parent to establish documents that name a guardian (and backups!) if you die or become disabled.

If you name a guardian in your estate plan, the court will almost always (though not always) obey your wishes. Importantly, there are two types of guardianship: One form of guardianship is physical custody. This is a person's guardianship. Estate guardianship is the other choice. A money guardian is someone who has money. The courts usually separate these two roles, and you may want to do the same with your estate plan.

What Is a Pour-Over Will in California?


A Pour-Over Will is part of a California Estate Plan, and it directs anything that isn't in your Living Trust at the time of your death (but should be) to your trust. For example, if a lender wants you to take your home out of the trust to refinance your mortgage and you fail to deed the property back into the trust, your Pour-Over Will ensures that the home is allocated according to the trust's terms rather than your state's intestacy rules. Dying "intestate" means passing away without leaving a Will, which is always a catastrophic circumstance for those left behind.

What is a HIPAA Document in California?


Designees with a HIPAA (Health Insurance Portability and Accountability Act) authorization can access your medical records. Consider the significance of such a document: While you do not want a home health worker to make medical decisions for you, you may want him or her to be able to pick up a lab report and speak with a nurse about your treatment. If no such permit exists, you are unintentionally causing a health issue for yourself.


What Other Documents May Be Necessary for a California Estate Plan?


Your California Estate Planning Lawyer will produce additional documents depending on your special situation. Asset insurance may be essential for people who are facing divorce, bankruptcy, or litigation against themselves or their heirs. To protect special-needs and disabled beneficiaries, special trusts and strategies will be needed.

The key is to note that an "estate plan" is a list of appointments, nominations, and orders that decide who will do what and how your belongings will get from point A to point B. This isn't an easy or static set of documents; it must be properly created, archived, maintained, and modified over time.

What does it mean to challenge a will?


Contesting a will is a legal challenge to a will's validity in probate court. There are a variety of explanations for contesting a will, many of which include the maker's mental incapacity, incapacity, or physical incapacity. Separately, the elderly and infirm are more likely to suffer from medical problems that render them more vulnerable to undue manipulation from those looking to profit from their skewed judgment.

We also see cases where a will was changed shortly before death, which often raises doubt and raises questions. If a will, revised will, or codicil contains significantly different terms from previous versions and disinherits certain beneficiaries while unfairly enriching others, it may be an indication that the deceased was coerced into making changes at a time when they weren't mentally capable of doing so, or that the changes they made were not in their own free will. The elderly and infirm are always so dependent on others for help that they will do everything a key caregiver requests, including changing their will.

How to Win a Will Contest in Los Angeles?


Here are some general guidelines and benchmarks to keep in mind:

  • Determine if you are capable of contesting the will. Understand that if you are not a family member or a creditor and you have never been named as a beneficiary in any version of the will, you do not have standing.

  • Obtain a copy of the contested will and any previous or alternate versions.

  • Examine the will and any previous versions to see what updates have been made and how they affect you and others.

  • When drafting the edition of the will that is harmful to you, gather some evidence that the deceased was not of sound mind, was unduly affected, or was the victim of fraud or forgery.

  • Take action right away.

  • Pay attention to your Estate Lawyer's candid evaluation of your case and consider whether the possible financial and emotional litigation risks outweigh the potential benefit.

  • Instead of going to court, consider mediation. This is almost always the less expensive and less stressful choice.

  • Be prepared to go to court if your counsel thinks you have a strong case but no settlement deal can be reached.

  • In any case, try not to let your feelings get the best of you, even though it's tempting. Allow your Estate Lawyer to speak for you; do not indulge in any conduct that might jeopardize your case.

  • Prepare yourself for a lengthy and potentially expensive war. You may be entitled to your lawsuit, and you could prevail in the end, but keep in mind that the case may take anything from a few months to several years to be settled in your favor.

What are the justifications for contesting a will?


The following are the four primary grounds for contesting a will:

  • At the time of the will's signing, state-mandated legal formalities, such as the presence of witnesses, were not followed.

  • When the will was written, the person who wrote it was mentally ill.

  • Whether they were coerced or unduly influenced by another interested party who stood to gain, the individual who created the will did so. This is by far the most popular explanation for successfully contesting a will, along with incapacity.

  • The will was fabricated or produced fraudulently in some other way.


Is it possible to challenge a will and win, even though the will contains a no-contest clause?


The courts of most states do not impose no-contest clauses in wills, which means they are simply ignored. California is one of the few states that does not impose no-contest clauses. However, if there is fair cause to object to the will's validity on other grounds, a no-contest clause will normally not exclude a will contest from being heard by the courts. However, these are tricky topics that should be discussed with a California Estate Attorney before taking action.


Who has the right to challenge a will?


In California, any interested party with standing will contest a will. Anyone who stands to gain or lose something in the case at hand is considered an interested party. Family members and designated beneficiaries in the disputed edition of the will or previous versions of the will are usually the only people who are involved. Children, heirs, devisees, partners, creditors, or anybody else with a property right or claim against the estate being managed are all considered "interested persons" under the California Probate Code.



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It's important to remember that just because you expected to receive anything from the estate doesn't mean you have the legal right to challenge the will. A general rule is that you must have an established interest in the case — normally by blood, marriage, or land.

Is it possible to challenge a will if you aren't included in it?

As long as you meet the definition of an interested party outlined above. Unfortunately, many people think they can't contest a will because they aren't included in it, when in fact, this is precisely why so many people bring these cases and win. An elderly person with impaired mental ability is often manipulated or forced into amending a will to unfairly favor the manipulating group while disinheriting others.

If, for example, previous iterations of a will clearly show the deceased's desire to leave a portion of their estate to their children, however, a near-death amendment leaves everything to a spouse or caregiver, it is entirely fair to doubt whether that decision was true and enforceable. In such cases, courts also lift an eyebrow, seeing an opportunistic and unjustly enriched faction for exactly what they are.

It's also worth remembering that you have nothing to lose if you have nothing. A consultation with any reputable Probate Attorney (including ours at 1000Attorneys.com) is normally free. As soon as a dubious will or codicil appears, I strongly advise anyone to meet with an Estate Planning Lawyer to review the details of their case.


Is it possible for nieces and nephews to challenge a will?

It happens regularly. While many will creators do not have children of their own, nieces and nephews are equally valuable to them. Will competitions not have to be limited to one's own children? Any interested party has the right to challenge the will. Depending on the circumstances, a niece or nephew may be considered an interested party. We've also seen instances where the deceased had their own children, but a niece or nephew inherited a larger share of the estate due to a closer relationship with their aunt or uncle during their lifetime.


It's worth noting, however, that most states' intestate succession laws don't allow nieces and nephews to inherit until certain other heirs have died. An inheritance will almost certainly have to be based on what the decedent intended for the niece or nephew in his or her will, or an earlier version of the will, or plans to make a will that was made but never held.

What is the time frame for contesting a will?

Several factors determine the length of time it takes to challenge a will. Any knowledgeable Estate Attorney would be open and honest about the possible personal and financial costs of contesting a will. After all, it's impossible for every future successor to feel like they've "won" if the estate assets they battled to assert have been largely exhausted by the battle's costs and left emotionally drained.


That is why, in these situations, the focus is to consider your objectives and your true goals and to develop a plan based on those goals to get you a good result faster. This not only reduces your legal costs but also reduces your personal burden and, ideally, any ill will between parties who may otherwise choose to remain friends.


Find A Will and Testament Lawyer in California

In California, contesting a will is very common because it is a high-net-worth state. According to a new survey, approximately 1.5 percent of all wills in California are challenged prior to probate administration. Although this may seem to be a small percentage, the total number of competitions is very large. If you're thinking of contesting a will in California, remember that you're not alone.


Here at 1000Attorneys.com is a California Bar Association Certified Lawyer Referral Service that can refer you to a fitting Estate Lawyer. You can contact us through our 24/7 Live Chat (or complete our submission form) for a Free Initial Case Review.


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