May 4, 2011

Last Will and Testament

Here are some common questions that relate to a last will and testament. 

1. What happens if I die without a will?

If a person dies without a will they are said to die intestate. The decedent’s estate is then allocated to their next of kin whoever that may be. If the decedent did not have any relatives or the decedent’s relatives could not be found, then the estate would escheat to the State of California.

2. Where should a will be stored?

A will may be stored in whatever location the person sees fit. For example, a will can be stored with the drafting attorney for safekeeping, although there are liability concerns for the attorney. Prob C §§ 700-735. Additionally, a will can be stored in a secure place such as a safety deposit box, safe or vault. Most of my clients have told me that they have stored their will at their home in a filing cabinet.

3. Would another state recognize a California will for probate?

I do not know because I am licensed to practice in California only. You would need to discuss this with an attorney licensed in that particular state.

4. What are the types of gifts that a testator may give?

There are 6 types of gifts that a testator may give. Prob C § 21117.

a. A specific gift is a gift of a particular item. For example, “I give my Omega DeVille Co-Axial Chronometer to Colin Locker.” (I have owned this type of watch since 2004 and highly recommend it).
b. A general gift is a gift from the general estate that does not give specific property. For example, “I give 10,000 shares of Exxon Mobil common stock to Blaine Ponder.”
c. A demonstrative gift designates a particular fund or asset from which the gift is to be made. For example, "I give the sum of $5000 to Marcel Rudolph to be paid from my Star One Credit Union account.”
d. A general pecuniary gift is a gift that is expressly stated either as a fixed dollar amount or as a dollar amount determinable by the provisions of the will. For example, "I give the sum of $25,000 to Patrick Kapernick."
e. An annuity gift is a general pecuniary gift that is payable periodically. For example, "I give the sum of $500 per month to Christian Culliver for the rest of his life."
f. A residuary gift is a gift of all that remains after all specific and general gifts are allocated. For example, "I give the residue of my estate to Eleanor Easley."

5. Can I disinherit my relatives in a will?

Yes, a Californian is entitled to disinherit everybody, except, if applicable, their spouse. In the case of a spouse, the testator may only give away ½ of the couple’s community property but may give away all of the testator’s separate property. If so desired, the following individuals should be specifically disinherited:

• A child of the testator born or adopted after the will was executed (Prob C §§21620-21621);
• A child omitted because the testator mistakenly believed the child to be deceased (Prob C §21622);
• A child of whose birth the testator was unaware (Prob C §21622); or
• A spouse who married the testator after the execution of the will (Prob C §21610).

California does not have forced heirship laws such as France, Germany, Switzerland and Japan. These laws limit a testator’s right to dispose of their estate by allowing the testator’s heirs to receive an inheritance regardless of the testator’s wishes.

6. Are wills public documents?

Yes, a will is a document that is open to public inspection provided that a will is written and it is appropriately lodged with the local probate court. Prob C §8200. 

7. Is a photocopied will admissible to probate court?

No, California law requires that an original will be executed in order to be accepted into probate. Therefore, a photocopied will is insufficient for probate purposes.

8. How much does an attorney charge to write a will?

The attorney fees I have seen charged for a will range from $400 - $800. Obviously this sample is not irrefutably representative of attorney fees for writing a will in California. Rather this sample is derived from personal experience.

9. Can I just buy a will online?

Yes, you are free to purchase a will online. I would never recommend anybody to do so however. The reason being is that these wills are cookie-cutter templates so you have to hope that your situation fits within the cookie-cutter template of the online will.

10. Do I need to write a will?

No, there is no legal requirement for writing a will. In particular, studies have shown that a majority of Americans have not written a will. Not writing a will is not necessarily disastrous because many assets can distributed through beneficiary designation whereby the problems associated for not having a will has largely been mitigated. Generally speaking, however, if a person has assets of over say $10,000, then writing a will would be recommended.