Have you thought about preparing a will? Here is some basic information about wills to help you through the process:
Basic Terms
A will is a legal document and a significant part of your estate planning, which generally covers the following four issues:
- Who you want to be your executor.
- Who is to receive your assets upon your death, naming individuals (beneficiaries) or organizations, such as a church or other nonprofit organization.
- Who you want to be guardians of your children who are under the age of 18.
- What desires you have regarding cremation, your funeral or burial.
A living will is a legal and binding document showing a person’s desires regarding the use of life-support systems and other treatments, such as the use of feeding tubes when they are either unconscious or terminally ill. It allows a person to explain in writing which medical treatment he or she does or does not want. A living will takes effect only when the patient can no longer express his or her wishes.
An executor is a person named in your will who is appointed to manage the disposition of your estate according to the instructions set forth in your will. They are in charge of paying your debts, expenses and taxes. According to the terms of your will, an executor will name the personal guardian to raise your minor children if you or the other parent isn’t available. An executor should be a person you trust and does not necessarily have to be a family member or person otherwise named in the will.
What Happens If You Die Without a Will?
If you die without a will, also called intestate, California law will determine the beneficiaries of your estate. The state will locate a spouse or registered domestic partner if one is available. If not, the assets will go to family members. Generally, a surviving spouse is entitled to the majority of a decedent’s estate, followed by children and parents and then other closest relatives. Many of these state laws are governed by the 1990 Uniform Probate Code, although the specific adoption, application and execution of the code will vary from state to state.
How Can I Make a Will?
In California, there are only a few requirements for a will to be valid:
- The will may be typed or handwritten.
- The person (testator) writing the will should be of sound mind, 18 years old at a minimum and able to sign the will.
- The will should be witnessed by two competent individuals (preferably not beneficiaries) who will also sign it saying that they either saw the testator sign the will in their presence or they have been told by the testator that their signature is on the document. Additionally, one witness should sign in the presence of the other witness. There may be exceptions to this rule when the person cannot sign or has a conservator (someone assigned to handle another’s affairs when they cannot handle them themselves).
For more information on wills, trusts and elder law, visit the San Diego County Bar Association website.
This information is for educational purposes only and is not intended to provide legal counsel or serve as legal advice. If you have a wills, trusts and elder law matter, it is best to consult the advice of an attorney. You can get referred to an attorney for a free 30-minute consultation through the San Diego County Bar’s Lawyer Referral & Information Service at www.sdcba.org/ineedalawyer or by calling 1 (800) 464-1529.