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WILLS

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The basic estate planning document is the will. In a will you state where and how you want your worldly possessions to be distributed after your death. An experienced estate planning attorney can help you ensure that your wishes are expressed properly so they will be followed.  According to a recent AARP survey, 41% of Americans over the age of 45 do not have a will. 

There are different types of wills:

Attested Will

Holographic Will

Pour-over Will

Living Will

 

Attested will:  This type of will is a formal will attested to by two witnesses, as required by California Law.

Holographic Will:  California permits assets to pass through probate by means of a will written totally in the handwriting of the decedent.  It must be signed and should be dated to lend authenticity, and it can be written on any object -- paper, an envelope, a bag, and so on.  One holographic will was scribbled on a lady's purse.

If you have only an attested will, an holographic will or no will, your possessions will likely pass through a Probate proceeding, if your assets total over $150,000.  Individuals with assets under $150,000 can state their desired distribution in such a will without fear of probate. 

Pour-over Will:  This special will allows an individual who has created a trust to avoid probate but who has neglected to put some assets (under $50,000), such as personal belongings or a valuable collection, into the trust during his/her lifetime, to have the assets "pour over" into the trust after the decedent's death, allowing the trustee to manage the assets along with the rest of the trust.  By have the assets poured over into the trust, those assets will not have to pass through probate.  The Pour-over will must comply with the Probate Code and a new one must be drafted every time you make an amendment to the trust into which the will will pour the assets.  Individuals who are California residents who possess more than $150,000 should definitely execute a Living Trust and a Pour-over  Will to assist them in avoiding Probate.

Living Will:  In California, the Living Will is now called an Advance Health Care Directive. It allows you to give instructions in advance about your health care desires and preferences when an emergency arises.  Drafting the document while you are healthy and in full control of your faculties, permits the agent you appoint to know what you want and enables that agent to act accordingly when you are unable to make decisions for yourself. 

There are wills you can download on the internet and fill in the blanks.  There are will packages you can buy online or in a stationery store.  There are books on how to write your own will.  Doing a will yourself in this manner can actually endanger your plan, because there are many things a will will NOT do, as explained below. 

What a will will not do:

1. It will not dispose of jointly-held assets, accounts with beneficiary designations, and anything that is not property that must pass through probate.

2. It will not govern transfers of joint tenancy property.

3. It will not alter provisions in other documents, like life insurance policies and marital settlement agreements.

4. It will not keep itself up to date.  You need to review and revise it every few years.  If you have a Pour-over will drafted after you created your Living Trust, you need to do a new Pour-over will at the same time you create any amendments to your trust.

5. It will not let you avoid probate. 

6. It will not take effect until you die. 

Beware of forms that are not provided by a qualified Estate Planning Attorney.  The forms are not drafted to your special circumstances.  Intelligent and effective will-drafting requires the knowledge and guidance you can get only from an Estate Planning Attorney who has been trained make sure your document does what you want it to do.

Everybody over the age of 18 needs some type of Estate Plan.  Your Estate Planning Attorney will advise you whether a will alone or a package of all-encompassing estate-planning documents is the right plan for your needs.

The information on this website is for educational purposes only and should not be considered legal advice or an attorney-client relationship. For clarification of any material of this website or to seek help on your particular issue, feel free  to contact  The Law Office of Derryl H. Molina at  (408) 244-4992 or email  Derryl H. Molina at attderryl@comcast.net