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Who Has a Will in the United States?
According to Legal Zoom, as many as 55 percent of American adults do not have a will or other estate plan in place. This number has remained fairly steady from 2000 to the present, although the number of American adults who have advanced medical directives has increased. Those adults who do have wills are typically older—in the 1990s, more than 90 percent of the wills probated in the United States were made by those who were 60 years or older. California, like all states in the U.S., has specific laws and rules regarding what makes a will legal in the state.
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Rules for Making a Will in California
Anyone who is over the age of 18 and is of “sound mind” can make a will in California. Sound mind means the person understands he or she is making a will and leaving their assets to chosen loved ones in the will. In California, the testator (the person making the will) and two witnesses must sign the will. If the testator is unable to sign the will, he or she may designate another person to sign the will, while witnessing that signature. If one of the witnesses is also a beneficiary, a third witness must be added in order for that witness to keep his or her inheritance. Otherwise, the bequest will be considered void, and that person can only receive an inheritance which is equal to what he or she would have been entitled to, had the testator died without a will (The remainder of the will is unaffected). As a general rule, beneficiaries NEVER witness a will.
How Marriage Affects Your Will in the State of California
Because California is a community property state, spouses are entitled to an equal share of ownership in any property acquired during the marriage, therefore a person’s will may give away property which belongs solely to the person making the will but may not give away any property acquired during the marriage which belongs equally to both spouses. If a person attempts to give away community property to another person, the probate court will not honor the provision. A will does not have to be notarized in California.
Revoking a Will in California
Once a will is signed and witnessed in the state of California, it can be revoked in one of three ways. The testator can revoke the will when he or she makes a new will stating all prior wills are revoked. The testator can destroy the will by burning or shredding—or some other method which completely destroys the will. The third manner in which a California will can be revoked is when a testator is married at the time the will is made, then divorces. Only the part of the will which left property to a former spouse is considered revoked unless the will specifically state that even in the event of a divorce the will’s contents stands.
Oral and Handwritten Wills
Oral wills (nuncupative) are not permitted in the state of California—all wills must be in writing and signed by the testator unless the testator is so mentally or physically incapacitated that a guardian or conservator has been appointed to manage the testator’s affairs. In this case, the guardian or conservator is allowed to prepare and sign a will on behalf of the testator. Handwritten wills (holographic wills) are legal in California and do not require witness signatures so long as the provisions are in the testator’s handwriting, however, if a handwritten will is not dated, the validity may be challenged. Should you die without a will, your estate will be handled by the state of California, and your assets will be distributed to your heirs under California law. If no heirs are found, the state of California will keep your assets.
Reasons to Have a Will
There are plenty of reasons to have a will, and your California estate planning attorney can more thoroughly discuss these reasons with you, however, the following are the primary reasons to have a will:
- You get to decide how your assets will be distributed, rather than leaving it to chance and the state of California.
- You get to decide who will take care of your minor children by naming a guardian in your will. Without this, the court will choose a person to care for your children—and that person might be someone you would not want to raise your children.
- You can avoid legal challenges if you have a will, keeping your assets from passing to someone you did not intend.
- As your life circumstances change, you can change your will to reflect a new situation, such as a marriage, birth, death or divorce.
- It can be very beneficial to speak to an experienced estate planning attorney from the Gullotta Law Group because drafting a will can feel overwhelming. Our attorneys know all the state laws regarding estate planning, keeping up with these laws in case they change.
A living trust is an arrangement under which one person (the trustee) holds legal title to property for another person, known as the beneficiary. You can be the trustee of your own living trust, which gives you full control over the trust so long as you are alive and not incapacitated. You could have an irrevocable living trust (meaning that once it is in place it cannot be changed), or revocable living trust (meaning it can be changed by you, as your circumstances change). The primary benefits of a trust are that your estate will not be required to go through probate, and, unlike a will, the provisions in your trust are not accessible to the public.
Revocable living trusts are sometimes known as family trusts, as they allow your assets to pass to family members or other beneficiaries without the necessity of a time-consuming, potentially expensive probate. A family business, business interests, bank accounts, investment accounts, personal property, antiques or collections, and other valuables can all be placed in a trust. Once these items are placed in the trust, you still have the ability to invest these assets, borrow against them, transfer them, or even sell them—exactly as you would if the assets were not in a trust. You will administer the trust during your life, then your named successor trustee will distribute your assets after your death. Successor trustees could be a spouse, an adult child, or a close, trusted friend. While many people think trusts are only for the very wealthy, in fact, trust can benefit people from all walks of life.
A trust is, in essence, a simple agreement between you and yourself! A trust is not recorded and is not a public document, therefore all your personal information and transactional activities are private. As your circumstances in life change, you can move assets in and out of the trust, or even revoke it all together, unless you choose an irrevocable trust. (The benefits of an irrevocable trust are primarily tax-related). It is very important that you have a knowledgeable estate planning attorney from the Gullotta Law Group to set up your trust. Far too often, a trust is not set up correctly, or assets were not properly moved into the trust (known as “funding the trust”). It is essential that all possible outcomes be considered so the people who are important to you are provided for after your death. A California trust allows you to have the benefits of a will while saving your beneficiaries from the often-complex California probate process.
The Difference Between Wills and Trusts
While there are definite differences between a will and a trust, both are useful estate planning devices which serve different purposes. Wills and trusts can work together to create a comprehensive estate plan. Even if you have a trust, there are reasons to have a will as well. If you have minor children, you cannot name a guardian for them in your trust, therefore you need a will. A will also provides a backup plan for any property which does not make it into your trust. As an example, if you acquire new property and do not get it added to your trust prior to your death, then the property will not pass under the terms of the trust. You can use your will to name beneficiaries for any property which is not fully covered under your trust.
While a will goes into effect only after your death, a trust goes into effect as soon as it is created and funded. A trust can be used to begin distributing your property prior to your death, upon your death, or at some time in the future after your death. A will states who will receive your property only after your death, appointing a legal representative to carry out your wishes. Trusts typically have two types of beneficiaries—one set who receive an income from the trust during their lives, and another set of beneficiaries who receive whatever is left over in the trust after the death of the first set of beneficiaries.
Contacting an Attorney from the Gullotta Law Group
Because estate planning can be a complex process, those who attempt to create their own will or trust are often less-than-satisfied with the future outcome. Attorney Gullotta is a caring, knowledgeable estate planning attorney who is highly experienced and well-equipped to draft your comprehensive estate plan. With over 15 years’ experience as a CPA and a master’s degree in taxation, Eric Gullotta offers an easy-to-read guide regarding the documents you need in your estate plan as well as a free consultation to discuss your current situation and your goals.
We listen carefully to your needs, then create an estate plan which ensures your goals for the future are reflected in your estate plan and recognized by the court and your family members. To help you keep costs to a minimum, we charge a flat fee, thus allowing you to feel comfortable discussing all your needs and wishes with us. At the Gullotta Law Group we always take the time understand your goals and values and we work hard to protect your family members, reduce your costs and save on future taxes. To speak with an experienced Sonoma estate planning attorney, contact the Gullotta Law Group today.