For many people, creating a will is the first thing that comes to mind when they think about estate planning. Although estate planning involves far more than just drafting up a will, a will is necessary to carry out your wishes with as little conflict and excessive financial burden on your survivors and loved ones.
This article will explore why you need a will, explained by estate planning attorneys. It will discuss what is included in a will, what does a will do, and how is a well written. If you have additional questions or concerns, or would like to speak with a knowledgeable Northern California estate planning attorney about preparing a will, the legal team at Barr and Young offers a free consultation.
What Is a Will?
A will is a legal document that says who will get your belongings, including your money after you die. It is essentially a set of instructions and can include designated guardians for minor children (or adult children with special needs). Although most will follow standard formats, some have special provisions for unique situations, which may or may not be legally enforceable. A will’s custodian (person in possession of the will) or executor is required to file a will after death, within 30 days. The will must be filed in the county where the deceased person lived.
Why Do You Need a Will?
When actor Chadwick Boseman passed away in 2020, he joined a long list of famous people who have passed away without a will, including Abraham Lincoln, Pablo Picasso, Jimi Hendrix, Prince, and Aretha Franklin. Not having a will is surprisingly common; a 2022 survey published by Caring.com established that only 33% of Americans have a will or living trust – with many people saying they don’t believe they have enough assets to leave behind.
We are often asked when do you need a will? Technically, you do not need a will until you are no longer alive. However, because it is entirely impossible to predict catastrophic accidents or sudden health events, you need a will if you are married, have children, or have assets. Even if you have a relatively small estate, having a will allow you to decide what happens with your assets – not the court system. That is in essence, the purpose of wills.
Types of Inheritance Wills
Hollywood loves to use various types of will documents as dramatic plot devices, such as the reading of the will in Rain Man. In real life, the executor or estate attorney will often send a copy of the will to individuals entitled to receive a copy (as well as a copy of the trust, if there is one).
People writing their initial will often ask what type of wills are there. Wills can take many forms, which may or may not be legal.
Written, Witnessed Wills
Typed up, written wills, signed by witnesses, are the most common type of will. This is the kind of will that an estate planning lawyer will prepare.
Handwritten or Holographic Wills
A holographic will is a will written out entirely by hand and signed, without a witness. Although technically legal, holographic wills are more often challenged for their validity because they are not witnessed by anyone.
Oral or Nuncupative Wills
Oral or spoken wills are not valid in California. California Probate Code § 6110 requires wills to be in writing.
A pour-over will is a legal will that supports trust. It is a catch-all or backstop instrument that “pours over” a decedent’s entire assets into a trust. This can include assets that are acquired after the execution of a will, or accidentally left out.
Joint Wills or Mirror Wills
Joint or mirror wills are simply wills shared by married partners. The wills are nearly identical and “mirror” each other because their wishes are the same. For example, A married couple with children each wants to leave their assets equally to their surviving spouse and children.
A living will is not technically a will – it is an advance health care directive that states your wishes should you not be able to make healthcare decisions due to incapacitation. It is not the same as a health care power of attorney. It is called a living will because it is used while you are still alive.
What Is Included in a Will?
The requirements of a will are established in California Probate Code § 6110. Typical elements of your will include the identification of:
Your executor is the individual you designate to carry out your will – from selling assets to handling debts and paying taxes. It is possible to have two executors (co-executors) but generally, one designated individual is sufficient and ensures there are no disagreements between executors. An adult child is a common choice for an executor. The California Probate Code has a reasonable fee schedule for the payment of executors.
Your beneficiaries are any individuals or charities you wish to receive your property. It is best to be as detailed as possible to avoid dispute or confusion.
If you have minor children your will is the place to designate a guardian who will take on the significant emotional and financial burden of raising your children. You can also make provisions for care for your pets and any future pets you may have (although pets are technically property, in the state of California).
You will also establish what each of your beneficiaries receives. What is included in a will is entirely up to you but should include all of your assets. These gifts could be a percentage of your estate or a dollar amount. Your beneficiaries can be individual people or charities.
Common Types of Inherited Assets
If you have an asset that you want to leave to a named beneficiary in a will, you should list it in your will (unless you have a trust). You can put your instructions in a will for distribution of many different types of property in a will, including:
|Aircraft||Investment / Brokerage Accounts|
|Bank Accounts / Crypto Accounts||NFTs|
|Boats||Loyalty Points / Frequent Flier Miles|
|Business Interests||Physical Cash|
|Cell phones, tablets, and computers||Real Estate|
|Digital Assets (websites, social media, etc.)||Vehicles|
There is increasing attention around digital assets, and access to accounts. For example, a popular influencer/blogger could earn thousands of dollars in income from Google Ads on their website. If they wish to transfer the website (and stream of income) after their death, they will need to make provisions for that.
Loyalty points for airlines, hotel chains, and rental cars can be worth thousands of dollars. It is important to review various loyalty policies because some programs may not allow transfer after death, in which case the executor would need the decedent’s login and password. One thing to keep in mind: In today’s era of two-factor authentication, login and password information may not be sufficient.
What Is Not Covered in a Will?
A will can instruct your loved ones and families on what to do with the majority of your assets. However, there are certain assets that a personal will (and the probate process) does not cover:
- Life insurance policies: These may have been obtained from insurance companies, credit card companies, employers, or the military – and will designate a beneficiary or beneficiaries.
- Retirement plans: 401(k)s, traditional, ROTH, or SEP IRAs will designate a beneficiary.
- Bank accounts registered as pay on death – these accounts indicate who is supposed.
- Interests in property held in joint tenancy: Ownership in real estate, automobiles, or stocks held in joint tenant ownership will automatically pass to the survivor upon the death of one of the tenants (note, this IS a taxable event).
- Assets held in a trust: A trust will cover all assets that have been transferred to the trust.
You cannot use a will to transfer assets that you own in joint tenancy with someone else.
Wills vs. Trusts
Although sometimes the two terms are used interchangeably by people outside of estate planning, wills and trusts are two very different legal documents. A will does NOT avoid the probate process. If you have minor children, a will is a document that you use to name a guardian (or guardians).
A trust will allow you to avoid probate. Another major advantage of trusts is privacy – wills are public records, while trusts are private (although your beneficiaries and heirs at law have the right to ask for and receive a copy of the trust).
What Happens If I Don’t Have a Will?
Passing away without a will is known as dying “intestate”. If you have not documented how you want your assets to be distributed, the state will determine this on your behalf, following California’s intestate succession law. This can be problematic if your estate is to be divided up among multiple people, such as your spouse and children. Assets – including the family home – may be forced to be sold. If you are not married and have no children, your estate may go to your parents even if you would rather your non-married partner or even a fiance.
How Is a Will Written?
Setting up a will is not particularly complicated, and a will may only be a few pages long. The process of writing a will involves:
- Accounting for your property and assets.
- Deciding who you want to leave your property and assets to (beneficiaries).
- Select an executor to distribute your assets and handle your estate.
- Selecting a guardian for minor children or children with special needs.
- Writing your will.
- Signing your will in front of witnesses.
- Storing your will in a safe place.
What About DIY Wills – Making a Will Online?
Almost all estate planning attorneys recommend not using boilerplate DIY solutions for wills, like LegalZoom or Quicken WillMaker. Having a licensed attorney prepare you will be slightly more expensive but is the best way to protect your assets and your loved ones. Especially if you think your will may be contested, or it is necessary for you to disinherit a spouse or child, having an experienced and knowledgeable estate planning attorney is the way to go.
After you’ve worked hard for your assets, a will can ensure your wishes are carried out after you pass away, and painful and expensive litigation is avoided. If you would like to speak with a Northern California estate planning attorney about drafting a will, contact Barr & Young for a free consultation.