A will is what most of us think of when we first consider estate planning. In fact, a lot of people decide that a will is the only estate planning device they need.
What is a will? A will is a document that specifies who gets the property covered by the document after an individual’s death. A will can also appoint a personal guardian to raise your minor children if you and the other parent aren’t available.
It must be noted, however, that a stand-alone will is not a tool that helps you avoid probate. To the contrary, property left by a will must normally go through probate proceedings. Thus, generally, a more comprehensive estate plan is recommended.
Is a stand-alone will enough? In most cases, the answer is no. But in some situations a stand-alone will is a better solution than no estate plan at all. You may consider a stand-alone will if you can sensibly postpone the more complicated estate planning work. For example, if you are young and healthy, and statistically unlikely to die for decades, a will may be a proper estate-planning tool to carry out your basic wishes for your property in case of unexpected circumstances.
What makes a will legal? To have a valid and legally enforceable will you must meet several requirements:
- You must be at least 18 years old and of sound mind.
- The will must be typewritten.
- The will must have at least one substantive provision. Usually it states that you leave some or all of your property to the beneficiaries provided in the will.
- You must appoint at least one executor.
- You must date the will and sign it in front of two witnesses.
California law does not require the will to be recorded or filed with any government institution.
Do I need a will if I have a living trust? The simple answer is yes. Even if you have a throughout estate plan and arrange to avoid probate for all of your property, you would still want to have a will as part of your estate plan. A will would serve as a backup for the following reasons:
- To leave property that is not suitable to leave by a living trust. For example, your car.
- To dispose of suddenly acquired property shortly before death, which you did not have time to add to the trust.
- To dispose of property not transferred by a probate avoidance device. If you bought property but did not get around to adding it to the trust or failed to transfer it to the trust due to document formalities, a will is a valuable tool in ensuring that the property will go to your beneficiary and not pass under state law.
- To name a personal guardian for your minor children. If you have minor children, you need a will to name a personal guardian for them. You cannot use any other device for this purpose.
- To disinherit a child or spouse.
- To name your executor, the person with legal authority to supervise distribution of property left by your will, and to represent your estate.
- In a case where probate is not required. In California, estates worth less than $150,000 can be transferred by a will without any probate. Property transferred by other estate planning devices does not count toward the $150,000 limit. Thus, a will can be efficient in transferring the lesser value assets or making small gifts.
Everyone should have a will, whether or not they develop a more extensive estate plan.
Contact San Diego Tax Law Group today to take care of preparing your essential estate planning device.