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Message #660 Wills

mp3 #660 Do You Need A Will? (mp3 file)

This SmartLaw message will answer the following questions:

1-What can a will do for you?

2-Does a will cover everything you own?

3-What happens if you don't have a will?

4-Does a will keep your estate out of court?

5-What kind of will should you have?

6-Can you change your will?

7-Who should know about your will?

8-Will your heirs have to pay estate taxes?

9-What other planning should you do?

10-How can you find a lawyer to represent you?

First, what can a will do for you?

A will is a way of making sure that your property goes to certain people or organizations when you die. It also can be part of your overall "estate plan."

With a will, you can name:

Your beneficiaries. These are family members, friends, or organizations who will inherit your "estate." Your estate is made up of furniture, jewelry, stocks, a business, real estate or anything else that you own. With a will you can also name a guardian. This person will take care of your children in case you and your spouse die when the children are minors. The guardian will raise your children and manage their money. The guardian is appointed by the court; however, the recommendation in the will is usually followed. With a will you can also name an executor. This person or institution collects your property, pays your debts and any taxes that are due, and then makes sure that the rest of your estate is given to your beneficiaries in accordance with your directions.

Next, does a will cover everything you own?

No. Some property is not covered by a will:

Life insurance. Money from your life insurance policy goes to the people you name as beneficiaries on the policy - no matter who is listed as an heir in your will. You can, however, name your estate as the beneficiary.

Retirement plans. Money from your retirement plan goes to the person you name in the plan.

Property owned as a joint tenant. If you own real estate, cars, bank accounts and other property with another person or persons as joint tenants, your co-owners will inherit.

Living trusts. Any property that you place in a living irrevocable trust during your lifetime goes to the trust's beneficiary. A living trust is a way of managing your funds and investments during your lifetime and transferring them to a beneficiary after your death.

Your spouse's half of community property. In California, any money, California real estate and possessions that you and your spouse acquire during your marriage are called community property. You and your spouse own equal shares of this property, no matter who earns the most. So, your will can include only your half of the community property, not your spouse's.

Possessions and property that either partner brought into the marriage - plus gifts and inheritances given to just one spouse during the marriage are called separate property. Your will may include all your separate property.

Even if your entire estate consists of a life insurance policy, a retirement plan and joint tenancies, you still should consider making a will. If, for example, you win a lottery or inherit jewelry from a friend, your will would cover such unexpected additions to your estate. It also can name a guardian for your children. The beneficiaries of your insurance or retirement plan, or your joint tenant may predecease you.

Next, what happens if you don't have a will?

If you die without a will, state laws determine who gets your estate.

If you are married, your spouse receives all your community property. Part of your separate property goes to your spouse and part to your children, parents, sisters, brothers, nieces, nephews or other close relatives.

If you are not married, your estate goes to your children or grandchildren, if you have any - or to your parents, sisters, brothers, nieces, nephews or other close relatives.

If you have no living relatives, the state gets everything you own. People who are not relatives won't inherit anything if you die without a will. So, your friends, former spouse or favorite charity won't get a thing. A surviving member of an unmarried couple also does not inherit.

Next, does a will keep your estate out of court?

No. Making a will is not a way to avoid "probate" - the court procedure that changes the legal ownership of your property after your death.

Your will is filed with the county court after you die. The court's probate department makes sure it is your last valid will, appoints the executor named in your will, and supervises the executor's work. If someone challenges your will, a probate judge decides if that person should inherit any of your property.

Your estate avoids probate only if:

-you left your entire estate to your spouse, or

-your estate is worth no more than $100,000 after your spouse's share is paid, or

-your property is held in joint tenancy with another person, or is all payable to a named beneficiary (such as the beneficiary you list on a life insurance policy), or

-during your lifetime, you put everything you own into a living trust, so that you own no more than $100,000 in your name at the time of your death.

Next, what kind of will should you have?

In California, you can make a will in one of three ways:

A handwritten or holographic will. This will must be completely handwritten. You must date and sign the will. Your handwriting has to be legible, and the will must explain clearly what you are leaving to whom. Remember: your family, friends, and a probate judge must be able to understand your exact wishes.

A handwritten will does not have to be notarized or witnessed. Even so, having the will signed by witnesses is a good idea. And, since probate laws are very specific, you may want a lawyer to check the will to be sure that everything is done correctly.

Or you can use what is called a statutory will. California law provides for a fill-in-the-blank form will. It is designed for California residents, whether single, married, or divorced, who have modest estates. The form helps you leave your estate to your children, spouse, or other beneficiary, and lets you give money to other persons or charities. And, with the form, you can also name a guardian or executor.

The California Bar Association offers a free California Statutory Will Form via the Public Service section of its website:

Or you can use a will prepared by a lawyer. A lawyer can help you understand the many ways that you can leave your property to beneficiaries. A lawyer also can help you develop a complete estate plan and explain the tax consequences. This kind of planning can save time and money for your heirs.

To ensure a will's authenticity, at least two people who will not inherit from you must see you sign a typed or printed will. These witnesses must sign your will, too.

No matter what kind of will you use, keep in mind that you and your spouse should have separate wills.

Next, can you change your will?

Yes. In fact, if your will isn't up-to-date when you die, you may fail to make a provision for important people in your life.

You can change your will through what is called a "codicil" or by writing a new will. A codicil is a legal paper that becomes an addition to your will. Do not change your will just by crossing things out and writing or typing changes on it.

A codicil can be used to make fairly simple changes, such as naming a different executor, or one different beneficiary. It needs to be written and witnessed in the same ways that wills are.

You should think about making an entirely new will when:

-you marry or divorce (once you divorce, your ex-spouse will not get any of your estate unless you say so in a new will); or

-there is a birth or death in the family; or

-your property greatly increases or decreases in value; or

-the person you name as guardian or executor either moves away or dies.

Also, if you move to another state, check with a lawyer there to see if your California will is still valid.

Next, who should know about your will?

Other than the lawyer who writes a will for you, no one needs to know what your will says. But your executor and other close friends or relatives should know that you have a will. Whether you keep the will in a safe deposit box, your lawyer's safe, or a fireproof box at home, they should know where to find it when you die. Also, if you add a codicil to your will, be sure to store it with the will.

Next, will your heirs have to pay estate taxes?

Any property that you leave to your spouse is not subject to federal estate tax. The rest of your estate also will not be taxed, if it is worth less than two million dollars. California has no inheritance tax and its estate tax has been phased out. If you own real property in another state, that state’s inheritance taxes may be applicable to such property.

Next, what other planning should you do?

You can do several things now that can help your executor and family later on:

Property list. Help your executor and heirs know what you own, by making a list of your property and where it can be found. Name your bank accounts, safety deposit boxes, stocks and bonds, real estate and other possessions. Also write down the names and addresses of your creditors - the people and companies to whom you owe money.

Also prepare burial instructions. Let your heirs know in writing if you want to be buried or cremated, if you want to donate organs to a hospital, and where you wish to be buried.

Be sure to tell your executor and family about these papers and where you keep them.

You also can let people know about your:

Life support preferences. Someday you may be seriously ill and unable to let your family and doctors know what kind of medical treatment you would like. For example, if you were in a coma, would you want doctors to use life support systems to keep you alive?

In California, you can use a legal form to name a friend or relative to make medical decisions for you if you are ever unable to do so yourself. On this "Durable Power Of Attorney For Health Care" form, you also state whether you want life support treatment.

Once you have completed this form, the person you named and your doctor must follow your wishes. To find out more about durable powers of attorney for healthcare, listen to SmartLaw message 643.

Durable power of attorney. In California, you can give a friend or relative the power to make financial decisions for you if you are not competent to do so on your own. To find out more about durable powers of attorney for asset management, review SmartLaw message 668.

If your estate or you and your spouse’s combined estates exceed two million dollars, you may wish to speak with a tax lawyer about planning.

Last, how can you find a lawyer to represent you?

If you do not know a lawyer, ask a friend, co-worker, employer or business associate to recommend one. Or call a local State Bar-certified lawyer referral service.

The person who answers your call can make an appointment for you to see a lawyer. In some cases, you will pay a small fee to talk with the lawyer for about one half-hour. If you decide to hire the lawyer, make sure you understand what you will be paying for, how much it will cost and when you will be expected to pay your bill.

What if you do not have enough money to pay for legal advice?

You may belong to a "legal insurance plan" that covers the kind of services you need. Or, if your income is very low, you may qualify for free or low-cost legal help. Check the white pages of your telephone directory for a legal aid society in your county. For a list of legal services agencies that help low income people with wills, review SmartLaw message 106.

The purpose of this message is to provide general information on the law, which is subject to change. If you have a specific legal problem, you may want to consult a lawyer.

The message you have just heard is based on a pamphlet published by the State Bar of California. If you would like a free copy of the State Bar's pamphlet on this subject, visit the Public Service section of its website: or call 888-875-5297. Please state the title of this message, "Do You Need A Will?" when you order your free pamphlet. And for a free SmartLaw brochure called "Planning Ahead Has No Age Limit" send a self addressed, stamped envelope to SmartLaw brochure planning ahead, POB 55020, Los Angeles, CA 90055.

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