Wills Attorney Serving Orange County & Los Angeles
With the passage of time, many realize the importance of having a will in place to direct how their assets including real property, personal items, money, and other valuables will be distributed upon their death. Without having your beneficiaries specifically and legally designated by a will or other estate plan, the state will distribute your assets as it sees fit.
WHAT IS A WILL?
A will, in its most basic definition, is a legal document. It contains various details that reflect what you want to happen with your property after you die. The document provides information that identifies:
- Who you wish to receive your property
- The name of an executor or personal representative
- A guardian for your dependents
- Someone to look after property of your dependents
- Trustees to manage property held in trust
In short, a will is designed to make sure your wishes are carried out after your death. The agent you choose is required to file the will with a court, once you’re deceased, often with the help of a probate lawyer. During the probate process, the authenticity of the will is determined.
Without a will, intestate laws are implemented by the state. The court will then decide who receives your property, which is usually the decedent’s spouse, children, or other family members. Nonetheless, a court’s guess doesn’t always reflect your wishes, which is why it is important to create a will and work with an estate planning lawyer.
WHAT’S THE DIFFERENCE BETWEEN A TRUST AND WILL?
Although it functions very similar to a will, a trust is much more flexible. You can leave property to friends and family, but the difference is you name a trustee to administer the trust, which would not be one of your children. The reason to form a trust is you may not believe your children would use the money wisely.
A trust enables you to set conditions on how money received by your beneficiaries can be used. Unlike with a will, you can indicate the funds can be used to pay, for example, unexpected medical expenses, college tuition, etc., but not for vacations. A revocable living trust can be changed at any time if you decide to modify the terms, and allows heirs to avoid probate on real estate, bank accounts, jewelry, and other property.
Your will is a general guideline on how to distribute your property after your death, and can only be modified or revoked while you are alive. Are you considering drafting a will or trust? An attorney experienced with wills and trusts will help you determine which is best for you.
WHY SHOULD I HAVE A WILL?
Wills are designed to protect your family and assets. They can do the following:
- Leave your property to a person or organization
- Designate a personal guardian to take care of your (minor) children
- Choose someone to manage those assets you want to leave for your children
- Designate an executor to carry out the terms of your will
- Those who pass away without a proper will in place die “intestate” and California will distribute your assets according to the state’s existing intestacy laws, as mentioned.
WHAT HAPPENS IF I DIE WITHOUT A WILL?
Many people do not take the time for thorough estate planning, or they believe their assets will be transferred automatically to their children or next of kin upon death. Without a will your assets will be handled by the state. Depending on your state’s laws, the handling of your property may not go according to your wishes. Most states handle property distribution in a similar way; although it is advisable to have a Los Angeles estate planning attorney, here is a general overview of what to expect without a will:
Single/Single with Children
Property and assets go to a living parent or, if the parents have passed away, the decedent’s siblings. If there are no siblings, the court will divide the estate into equal parts for each of the parents’ surviving relatives.
Whether a couple has children or not, the property may be split equally between a surviving spouse and a parent or sibling. Children from a prior relationship also have a legal claim to most assets.
The surviving partner in a domestic partnership, although they lived with the decedent for years in the same home, may not be covered in a will. Many intestacy laws may require the home be distributed to the deceased partner’s parents, children, or siblings.
HOW DO I SIGN A WILL?
Creating and signing a will isn’t usually complicated. The requirements are fairly straight forward; you need to sign and acknowledge the document with two witnesses present. A will doesn’t have to be written in legal language. There are also no rules as to how you choose to divide up your property. Spouses have a right to claim a certain amount of property after a partner dies; there’s typically no legal issue if you leave at least half of your property to them.
HOW DO I CONTEST A WILL?
A will can be contested by a spouse, child, or anyone mentioned in the will. To contest a will, you must fit into one of these categories, and can notify the court of your intentions. However, you must have a valid legal argument about the document or how it was creating.
The probate court will presume the document to be valid if it’s properly formatted. It can be contested through estate litigation only if there’s an issue with how it was signed and witnessed (for example, the signature is not that of your parent), the testator’s mental capacity was in question, or the will was signed as an act of fraud. A will may also be declared invalid if the person was under the influence at the time of signing.
If the court agrees the will or an amendment is invalid:
- The document can be thrown out.
- An earlier will could be put in place.
- State intestacy laws can be used to distribute assets.
- Parts of the will could be upheld by the court, but:
- The court will determine how to distribute the rest of the estate.
WHY SHOULD I MAKE A WILL WITH A LAWYER?
You don’t necessarily need a lawyer to make a will, but wills and trust attorneys can help you in many ways. Consulting estate planning attorneys is a good idea if you have questions about the process, are leaving a large amount of assets (subject to estate tax), or are a small business owner looking to leave certain assets to surviving owners. If your plans are more complex than simply naming names to receive your property, a lawyer can help.
WHAT INFORMATION DO I NEED TO PREPARE A WILL?
A will must list your significant assets and property, net worth, along with who is to inherit them. You also need to include the name of an executor to carry out the terms of the will. The document should name a guardian for your children, if they are minors, and the other parent is for some reason unable to care for them. It should also name someone to manage property if your children are too young to manage property they inherit.
Also have any existing wills, powers of attorney, child support orders, trusts, and other estate planning documents ready.
Formatting is important, but there are online resources and software to help you. Or you can consult an attorney experienced with estate planning and drafting wills. Consulting a lawyer can avoid requiring estate litigation attorneys later on, and ensure all parties receive their fair share of your property after you pass away.
Reliable Legal Help from a Los Angeles Estate Planning Lawyer
Crafting a will is a delicate process with considerable consequences. You need a trusted estate planning attorney in Orange County to handle such an important legal step. Oaktree Law has the experience you want to manage all your estate planning objectives. We are A+ rated by the Better Business Bureau because we make our clients’ objectives our own. Give us a call and learn why countless people turn to us to handle their estate planning needs.
While you may legally create a will on your own, countless people opt to consult with a professional Los Angeles estate planning lawyer with the relevant experience, because so much is at stake. You need to protect yourself in the event your will is contested, for example. Probate court is a time-consuming and expensive process, so make sure your assets are protected.
Oaktree Law knows how to ensure your wishes are respected and how California law can affect your assets and beneficiaries. Contact our firm online or at 562-219-2979 to learn more about our wills and trusts services, obtaining power of attorney, and other estate planning services.