Wills can be a critical part of an estate plan, and should be a consideration for everyone thinking about how and to whom their assets will pass. Our San Diego attorneys can assist individuals and families plan their estates, including drafting wills and trust.

What is a will, and Why do I need one?

Your Last Will and Testament is a document that can be a very important part of your estate plan, in which you designate the Executor and Beneficiaries of your estate. The Executor is the person responsible for tending to your final affairs and overseeing the distribution of your assets. The Beneficiaries are the people that you designate to receive your assets upon death. Your will provides these directions to the Probate Court, which is the government entity in charge of administering the proper distribution of the assets of a decedent (one who has died), adjudicates the validity of wills, enforces the provisions of a valid will, and provides for distribution of assets when a will is invalid or a decedent dies without ever executing a will.

Can I draft my own will?

Yes. Nothing prohibits a person from drafting their own will, however, the California Probate Code lays out specific rules and formalities that must be followed in order to ensure the validity of a will. If the will is not found to be valid, the laws of Intestacy will apply, and your wishes will be disregarded. The laws of Intestacy are laid out in the California Probate Code, and apply to estates where no will was ever created, or where a will was found to be invalid. Under the laws of Intestacy, the government dictates who gets your assets.

Does my will become public record?

Yes, upon your death, your will must be filed with the Probate Court. At this time your will becomes a public record.

If I have a will, can I avoid probate?

A stand-alone will does not avoid probate. However, a “pour-over” will used in conjunction with a Trust is commonly used to avoid probate. Additionally, there are some exceptions written in to the Probate Code, which exempt property (not including real property) under $150,000 from formal probate.

Once I make a will, can I change it?

As long as the Testator (individual creating the will) still has capacity, they can amend or revoke their will at any time. The threshold capacity for creating a will is relatively low, as compared to the capacity required to draft a Trust, or enter into a contract. The Testator must know who he or she is, have a general understanding of the assets that he or she owns, and know who the natural objects of his or her estate would be (i.e., spouse, children, parents, etc.). So long as the Testator has capacity, he or she can create, amend, or revoke their will.

If I have a trust, do I need a will?

It is best practice to have both a trust and a will. A “pour-over” will working in conjunction with a Trust is the best method to protect your assets from the laws of Intestacy, as well as avoiding the costly and public probate of your estate.

What should I do if I have questions about a will?

If you have any questions about wills, “Pour Over” wills, and trusts, please contact McLaughlin Legal today. We would be happy to discuss your matter and help determine the best estate planning strategy for your individual circumstances.

If you are interested in learning more about McLaughlin Legal’s tax and estate planning practice, including drafting a will, please feel free to contact us today for a free consultation.