Know Your Will’s Purpose
The first thing you’ll want to do is understand whether your will is the primary vehicle for the disposition of assets and whether a trust instrument will be in place. Trusts have many useful purposes, and we will discuss them later in this post.
Next, you should examine who the will is serving and the situation surrounding it. This requires an examination of who is important for the estate. Identify a spouse or partner, which for most people should be an easy step. Consider children, if any, and any other family members whom you would like to carry beneficiary interests. Next, think about whether they should benefit at nominal or significant levels.
At first look, these are relatively easy determinations, made at intuitive levels. It might become more complicated by emotions, so crafting your will during a less stressful period of your life is highly recommended. Blended families are very common today and many children now have more than two parents and more than two sets of grandparents! For tips on holding a discussion about wills when the family is all together, please refer to our blog post on talking about estate planning during the holidays (6 Tips For Estate Planning Over The Holidays)
Additionally, if you are not married to your partner or if you have an unmarried cohabitant, the state’s domestic partnership law comes into play and it is not always black and white. This is an area where our attorneys can help clear up gray areas in the law.
Turning toward the last part of your analysis, you should consider whether the purpose of this document is to help provide for a surviving partner during life, and provide for your children, if you have any, during the surviving partner’s life or after the surviving partner’s death, or both. Another important consideration is whether you want the will to maximize tax savings and how much that should influence other aspects. These are basic considerations, more will arise as the will is written.
Consider which State Law Applies
The laws of estate planning, being jurisdiction-specific, can vary widely from state to state. Many states have used the Uniform Probate Code (Arizona, Colorado, Idaho, Utah, etc.), and it was updated in 2019. California has not adopted it; its law has some elements that parallel it, but many elements that are completely different.
General Requirements of a Will
To go into effect, a will must meet the requirements of state law, which can vary. In general, wills must be properly drafted, signed, and witnessed. The testator, who is the person creating the will, must have testamentary capacity, or the legal capacity to make the will. Some states recognize holographic wills (handwritten, Cal. Prob. Code § 6111), oral wills (nuncupative wills, NOT valid in CA, Cal. Prob. Code § 6110), or out-of-state wills. To make matters more confusing, some states may recognize handwritten wills only if they are from another jurisdiction, where it was validly executed and recognized.
Community Property Rights
Some states don’t allow individuals to disinherit a spouse, including UPC states. California allows testators to grant less than the intestate share, though the spouse is still entitled to community property. One-half of the community property is by law deemed to belong to each spouse. For further information on the rights of spouses at probate, see Will I Get My Spouse’s Inheritance?
Children’s Rights
When it comes to disinheritance, minor dependents do not have the same basket of legal inheritance rights that spouses or domestic partners do. In California, children do not have the right to inherit from a parent (Cal. Prob. Code §§ 6400 to 6414). This does not mean that a child will receive no benefits, as there are situations, apart from the will, that apply in the estate planning situation. These may include exempted property, an omitted child’s share, or family allowance.
Louisiana, on the other hand, is the only state which maintains forced heirship laws and a child is eligible if under the age of 24 or permanently disabled. The UPC has provisions that allow for some benefits, such as for children born or adopted after the will is created.
Relationship to a Trust
Generally, assets in a trust, like property that is held jointly with rights of survivorship, do not pass under a will. For this reason, some testators may not feel the will is that important. However, we recommend a will in case property that you believe will pass outside of probate fails to do so. That can happen for several reasons, including property that is not transferred to the trust during the testator’s lifetime (such as income tax refunds, overpayment of insurance premiums, etc).
In those cases, a court case would be required, which can be costly and time-consuming. Without a will, that property would pass according to the state’s rules of intestacy. Thus, a will is part of a superior estate plan, even with a comprehensive trust in place. For more information on trusts and wills, please read this post (Wills vs. Trusts: Which Should You Choose?)
Helping you Write the Perfect Will
A well-written will can bring to life a vision of a well-taken care of partner and children and generous support of charitable organizations. Or when not executed, in a worst case, conflict and litigation. We are here to assist you in ensuring your hard-earned assets provide for important needs when the will comes into effect. Our experienced attorneys have counseled numerous clients to create customized and effective wills and it is directly in our skill set to help you achieve this important step in estate planning.
We are happy to assist by fielding your questions, providing legal advice, examining your estate plan and any task that can help move you towards this step. Call the trusted estate planning attorneys at Lowthorp, Richards, McMillan, Miller & Templeman at (805) 981-8555 or fill out our online contact form. Our attorneys live and work primarily in the California Tri-Counties area – Ventura, Santa Barbara, San Luis Obispo.