Last Will
For most people, preparing a Last Will is the full extent of any
estate planning. Under California law, if you do not have a will
or trust your estate will pass under the laws of intestacy.
In effect, this amounts to a Will that has been written for you by the
state legislature. You may have different desires than those of
the state.
If your estate includes assets worth
more than $100,000, you should consider the use of a
Revocable Trust which avoids the delays and expense of
Probate.
However, even if you have instituted a revocable trust, we recommend you
also have a Will. The primary reason for this recommendation is that
if any asset has not been transferred to your trust, it will still be
in your estate. If you do not also have a will, that asset would
be subject to the laws of intestacy, and that may not be what you
intend.
While your Will is a good location for specific burial and funeral arrangements you may
wish to be followed, you should also give a written copy of your instructions to someone
who you will entrust with carrying them out. This can be in the form of a simple letter
signed by you and giving clear instructions to someone who you can trust to implement your
instructions. A sample of such a letter is at the end of this section.
Typical instructions relate to whether or not you want your remains cremated, where you
would like to be buried, and whether there are specific instructions regarding your
funeral ceremony.
It is beyond the scope of this site to deal with the subject of the fear of death in
any meaningful way. In fact, we have found that this is one of those deep seated,
intractable issues that is not easily addressed through logical discourse. When asked,
everyone knows that they will die - someday. It seems that the greater the certainty that
someday may be near at hand propels many to take the plunge and plan their estate.
Example specific gift:
"I give my collection of Joni Mitchell records to Joan Brindell, my library of
art books to the county library, and $5,000 to Aids Healthcare Foundation."
Here you can provide for giving a specific item or an amount of money to a specific
person or organization upon your death. Name the item with sufficient specificity that it
can be identified and then indicate to whom that item will go.
Note that if the item you name is not in existence at the time of your death, no
substitution will be made of another item unless you so specify. If the person you name to
receive a specific gift does not outlive you, the gift lapses and is distributed as part
of the Residue.
Where you give a specific piece of property, unless you provide otherwise, any debts
connected with that item of property will have to be paid by the person receiving that
property. For example, if you give someone a car that is not yet paid for, they would have
to make the remaining payments. If you want to have the estate to pay off the debt, you
must say so in your Will (or revocable trust).
The Residue refers to everything in your estate that has not otherwise been distributed
as a Specific Gift.
You can name one person or organization to receive all of your estate except that which
is distributed under the Specific Bequests provision.
You should then name an alternate person/organization in case the first one you named
is not alive or is not willing to take your bequest. You may name more than one
person/organization (or combination) and if so, specify the percentage each is to receive,
making sure that the total is 100%.
You can also distribute the Residue of your estate to more than one person and/or
organization in percentage shares. If one of the named recipients does not survive you,
their share goes to the other named recipient(s).
The Executor is the person who is charged with carrying out the terms of your Will and
wrapping up your estate. Depending upon the nature of your estate, your Executor may need
to file a petition with the Probate Court for this purpose. If so, the Court will require
your Executor to post a bond equal to the value of your estate as security for her/his
actions unless you provide in your Will that such a bond is waived.
Ordinarily, if you think the person you name as Executor is trustworthy beyond
reproach, waiving the bond is sensible. It is a cost that will be taken from the value of
your estate if required. If you have any doubts, however, the cost of the bond is minimal
in comparison with the possible loss of valuable assets.
We recommend that you name an alternate Executor in case the person you name as your
primary Executor is unwilling or unable to serve in that capacity. The same considerations
as mentioned above apply to the issue of a bond.
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If you own property in another state that has not been transferred to a
revocable trust,
that property will have to be probated under the laws of that state and in that state.
We urge you to contact an attorney about any such property and to name in your Will an
executor for that property who lives in that state. This would be in addition to the
executor named under the provision described above. |
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Ordinarily, your Will includes a provision that disinherits
anyone who contests your Will.
If you expect any significant opposition to your plan for disbursing your estate after
your death, this provision may not be sufficient, alone, to meet such a challenge. You
need to take special care to document your mental health, your independence in decision
making and that your Will is, in fact yours and not the subject of any undue influence.
If you expect a significant challenge, we urge you to discuss this with an attorney.
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Dear John:
As my trusted friend, I am giving to you instructions for the treatment of my body and
for my funeral after I die.
First of all, I want you and only you to make all the decisions regarding these
matters. I have designated __________ as my agent under a Durable Power of Attorney for
Health. They have the authority to take my body upon my death.
What I want done is that I want my body cremated and the ashes strewn at sea at
sunrise. I want you to invite my close friends and family except for __________ to gather
before hand for a brief ceremony. I have written out a short statement that I would like
you to read to them. I specifically do not want _______________.
Thank you for taking care of this for me.
_______________________________________________
[Your signature]
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Providing for A Guardian of a Minor child
If you are a parent of a minor child, you may wish to provide in your Will for who will
take care of the minor child if you die during their minority. To do this, you include in
your Will a provision naming a guardian of the minor child.
1. Limitations
The law provides, in general, that if one parent dies, the other parent is the legal
custodian of any minor children of the couple, whether they were married or not. There are
exceptions to this general principle.
For example, if the mother has custody of a child and she dies when the child is 8
years old, the father will be presumed to have custody. If the mother names a third person
as guardian of the child in her Will, that will not take precedence over the normal rule
about custody.
However, naming such a third person in a Will does give that person legal standing to
challenge the father regarding custody, based upon the best interests of the child.
2. Naming a Guardian
In selecting a person to serve as the minor child's guardian after your death, you
should select someone who is capable of taking care of the child, is familiar with any
possible conflicts with other family members, and who is familiar with the child. If you
are naming someone other than a biological parent and you foresee a possible argument
regarding who should have custody of the child, consider the background and
characteristics of the person you name in the light of a challenge being made to their
capacity to serve.
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In order the change the
terms of a Will, you create what is called a codicil. A codicil to a
Will must be signed in the same manner as a Will. Depending upon
it's terms, a codicil can either change only a part of a Will or
completely replace it. |
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