Creating a Will ensures your assets are distributed to the individuals you have selected when you pass away. Without a Will, the California Probate Code will determine who inherits your assets, which may or may not match your desires. Ensuring that a Will receives the proper validation and enforcement is equally as important as the Will itself. Finding and meeting with a will attorney (known as a probate attorney) experienced in both wills and probate is imperative to protect your wishes as they can make certain appropriate documentation and protocols are followed.
What is a Will?
A Will is a document that sets out who you want to inherit your assets and who you want the court to appoint as Executor to manage the legal process of transferring the assets to your beneficiaries. A Will sometimes includes a Guardianship nomination for your children. A Will does not avoid probate!
Although a Will can be handwritten, specific legal requirements must be met for it to be valid, so it is best to meet with a probate attorney to make sure it is prepared properly. Having an attorney prepare the Will is also helpful in the event of a will contest. If a family member files a lawsuit contesting the validity of your Will, the attorney will have information about the decedent’s capacity at the time the will was prepared along with background on why they left their estate the way that they did.
Most Will contests allege undue influence or incapacity. With a Holographic Will (handwritten will), finding evidence to show the decedent’s intent and state of mind is much more challenging. An experienced will attorney that understands how to assess and document the capacity of a client can be the difference between having your wishes carried out and your will being invalidated, in the event of a Will contest.
While individuals often believe they “just need a simple will”, family dynamics and/or assets in California often require a Trust to avoid probate. If you do need a Trust, you still need a Will but it is a little bit different than the Will discussed above. If you have a Trust, a complete estate plan will also require you to have a Pourover Will.
A Pourover Will still nominates an Executor to manage probate in the event it is necessary, but instead of naming individuals to inherit your assets, the Will names the trust as the beneficiary of any assets that are not already transferred into the trust. The Pourover Will is a very important part of the estate planning process for individuals with a Trust as it is not uncommon for individuals to pass away having left assets outside of the trust.
The most common asset we see left out of the trust is the family home. Although the estate planning attorney hopefully prepared a Quitclaim Deed to transfer the family home into the trust, at some point there was a refinance and the lender required the home to be transferred out of the trust. Technically you can refinance your home while in the trust and larger institutions with legal departments understand how to do this, however, those that do not understand that will prepare a deed to Quitclaim the property out of the trust and back into your individual name. The problem is they never prepare the deed transferring the property back into the trust.
If the home does not make it back into the trust, you may still avoid probate, though you won’t avoid court altogether which is the goal of a properly prepared estate plan. Fortunately, there is a shortened procedure called a Heggstad/Ukkestad Petition that permits the attorney to present evidence to the court of the decedent’s intent to have their home held in trust. The Pourover Will is one piece of evidence that supports this claim. If successful, the court will issue an order reflecting the trust as the owner of the real property and you are out of court with a single hearing. The assets can then be administered under the trust without court involvement (assuming no one is contesting the validity of any of the documents).
As you can see, Wills and the probate laws and situations surrounding Wills are never simple. The will attorneys at Kam Law Firm are here to ensure all necessary measures are taken to minimize the risks of having your will invalidated. Contact us today for a free initial consultation with one of our experienced will and trust attorneys in San Diego.