Law Office of JoAnn D. Gould

Legal Counsel for individuals, Families and businesSEs

Central Valley Law

WILLS AND PROBATE

As most attorneys will tell you, there is rarely an easy or right answer in making estate planning decisions. The needs of the individual as well as the make-up of the family may be a deciding factor. Merely avoiding probate is not a good reason to decide in favor of a living trust. In fact, there are some instances where the probate process is the better decision. This may be especially true where there the family members do not get along. The decision of which type of estate plan should be based on the issues of each situation. This may include the types of assets in the estate, the value of the estate, or who may serve as a trustee or executor. What follows is a brief review of Wills and Probate.

WHAT IS A WILL?

A Will, like a Living Trust, is a document which describes you (known as the Testator) and your family, nominates an executor, and directs the executor in the management of your estate after your death and the disposition of your assets. A Will does not become effective until after your death. The nominated executor has no authority until being appointed by the Superior Court in the county in which the Will is probated.

If you have only a Will, you are directing your executor to file a petition in the Superior Court for authority to act as your executor, to find and value your assets, to pay your creditors and debts, and to distribute your estate as you have directed.

SHOULD EVERYONE MAKE A WILL?

YES! If you fail to make a Will, then an "interested" person may petition the Superior Court for authority to act as the personal representative of your estate. That person will have authority to find and value your assets, pay your creditors and debts, and distribute your estate as called for under California law, called intestate (meaning without a Will) succession. A means to determine your heirs is contained under California law, and generally include, your children, your spouse, your parent(s), your brothers and sisters and nieces and nephews and others. Failure to make provision for your estate may mean that relatives you do not wish to inherit your estate may inherit.

MAY I CHANGE MY WILL?

OF COURSE! However, if you want to change your Will, do not attempt to make the changes by writing on the original of the Will, erasing, or crossing anything out. Unless you wish to destroy your Will, you should make absolutely no marks on it after it has been properly signed and witnessed.

If your Will requires only minor changes, a codicil may be appropriate. A codicil is a separate document that makes additions, deletions or other changes that you desire in your original Will. A codicil must be executed and signed in the same manner as was your original Will. Note that a codicil does not revoke a Will. A codicil merely changes the portions of the original Will that are specifically identified in the codicil.

If your desire is to use a holograph, or hand-written codicil, to change your Will, you should have it reviewed by an attorney to ensure its accuracy and legal effect.

You may will need a new Will if you desire major changes in your original Will.

If any of the following events occur, you should review the potential effect on your estate planning to determine whether your Will should be amended by a codicil or revised in its entirety. (This is not an all-inclusive list.)

Changes in Family:

Dissolution of a marriage (divorce) or separation; Death of a spouse; Marriage of a single person
Changes regarding child, grandchild, dependent parent or other beneficiary: Such as: Birth of a child; Death of a child; Marriage of a child; Marriage dissolution of a child; Adoption of a child; Illness of a child; Economic change (good or bad fortune); Attitude change toward testator; Financial incompetency or irresponsibility

Changes in Economic and Personal Condition of Testator

Asset values -- increase or decrease; Change in insurability -- life insurance; Change in employment; Change in business interests (e.g., new partnership, corporation); Property acquired in a different state; Change in health of testator or spouse; Retirement from business or profession

External Changes

Changes in laws: state and federal income, estate and gift, property, trusts, probate; Change of residence to different state; Death of executor, trustee, or guardian

MAY I REVOKE MY WILL?

YES! You can revoke your Will by physically destroying it. This can best be achieved by burning the document or by tearing it up. You can also revoke, or cancel your Will by defacing it. In other words, you can cross it out or write across the face of it. Your Will is also revoked by properly executing a new one that explicitly revokes the old one. Even if you choose this approach, you should also destroy the old one to avoid the possibility of confusion.

WHERE SHOULD I KEEP MY WILL?

It is important to note that a copy of a Will has no legal effect. The original of your executed and witnessed Will should be put in a safe place, such as a safe deposit box. You may choose to use your own safe deposit box or some other safe depository. Your spouse, close friend or relative, or your Executor should know where your Will is kept.

A copy of your Will should be kept in a place where you can easily review it from time to time. Please note that a copy of a Will has no legal effect.

WHAT IS PROBATE?

Probate is a process whereby an individual, usually a person designated under a Will known as an Executor, petitions the court for authority to find your assets, value them, pay debts and creditors and taxes and distribute your estate in accordance with your wishes.

Each task in the administration of a Will has certain guidelines which are mandated by California law. For example, after the probate process has opened, the executor must publish notice of the decedent and other pertinent information. Also, creditors have a certain period of time in which to come forward and make a claim against the estate.

This waiting period is one of the so-called delays and problems with probate. However, it is a benefit to the heirs and beneficiaries of an estate in that if a creditor does not properly make a claim against an estate, that creditor may not collect either from the estate or from the heirs or beneficiaries. This is not the same under a living trust and may be a good reason to probate an estate.

IS IT MORE COSTLY TO PROBATE A WILL?

In many circumstances it may be more costly. You may look at the statutory fees included within this web site. Those fees are set under California law.

However, if you believe that the estate is one which differs from a general estate or it would be appropriate due to special circumstances, you should feel free to ask the attorney if the attorney and/or executor fees can be reduced by agreement.

SUMMARY AND OTHER INFORMATION

1. 1. 1.If you move to a different state or country, check to make sure that your Will is valid under the laws of that state or country.
      

   2. 2.Review your Will whenever there is any change in your personal circumstances, such as a birth, death, remarriage or divorce. (SEE ABOVE)
      

   3. 3.If your assets grow substantially, you should have estate tax planning done.
      

   4. 4.Keep your Will in a safe place and make sure you tell someone that you have a Will and where to find it.
      

   5. 5.Create an information list for your executor or others and attach a list of your main assets or indicate where your other important documents are kept. Please see Next of Kin.