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You probably have a basic idea of what a Last Will and Testament is already. A Will is a legal document that is used to express the Testator’s (creator’s) wishes regarding his/her estate assets and what should be done with them upon the Testator’s death. Gifts made in a Will may be general or specific. Gifting “half of my estate to my sister” is an example of a general bequest while gifting “$50,000 to my son Robert” is an example of a specific bequest. Along with making gifts of estate assets, a Will offers the parent of a minor child the only official opportunity available to indicate who the parent would want to serve as Guardian for the minor child if one is ever needed. Your Last Will and Testament also allows you to decide who will oversee the administration of your estate when you appoint an Executor.
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Contrary to popular belief, you do not need to reach a certain age or amass a certain amount of wealth before executing a Will. Every adult, regardless of age or wealth, should have a Will. You can always update your Will and add to your estate plan when you are older and have a family and/or a larger estate; however, you are never too young to have a basic Will in place. By the same token, while your overall estate plan may grow as your estate grows, you do not need to own valuable assets to benefit from executing a Will. You probably care what happens to the assets you do own even if they are not monetarily valuable. Likewise, you probably care who handles the probate of your estate and you certainly have an opinion about who should be appointed as your children’s guardian if you have children.
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Dying without a valid Will in place is referred to as dying “intestate.” In that case, the State of California (or your state of residence at the time of your death) decides how your estate assets are distributed using the Indiana intestate succession laws. Typically, this means that only close relatives will inherit from your estate. Close friends, a favorite niece or nephew, or a charity/church that that you have made promises to regarding gifts will receive nothing.
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People frequently make the mistake of thinking they can save time and money by using a “DIY” Will form they found on the internet. Unfortunately, you are more likely to cost your family unnecessary time and money when it comes time to probate your estate by using these forms. DIY Will forms are notorious for having errors and omissions that lead to protracted litigation during the probate of an estate. That litigation delays the distribution of estate assets and diminishes the value of the estate because of the costs involved in litigation. Considering that your Working with an experienced attorney saves time and money in the long run.
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It is tempting to appoint a spouse, friend, or family member as the Executor of your Will because you undoubtedly trust them to have your best interests at heart. While that may be true, you should take the time to consider if that individual is really the best person for the job. The Executor of a Will has several duties and responsibilities, many of which are best carried out by someone with a legal and/or financial background. In addition, someone extremely close to you will be grieving your loss and may not be capable of focusing on the duties and responsibilities of an Executor.
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The person you appointed as your Executor should begin the probate process as soon as possible after your death. This usually requires your Executor to submit your original Will along with a certified copy of your death certificate and a petition to the appropriate court for probate. Eventually, the terms of your Will dictate how any remaining estate assets are distributed at the end of the probate process.
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During probate, any interested party has the right to contest the validity of the Will submitted to the court. Nevertheless, a Will cannot be contested simply because the contestant is unhappy with the inheritance left to them (or lack thereof). To be successful, a contestant must prove one of the allowable legal reasons why a Will can be declared invalid in California. The Executor of the Will is responsible for defending the Will during the litigation (usually with the help of an experienced attorney). If the contestant is successful, the Will is declared invalid. The court must then look for a previous, valid, Will to use to probate the estate. If an alternative Will does not exist, the state intestate succession laws will be used to distribute the estate. If the Will is declared to be valid, probate of the estate continues pursuant to the terms of the Last Will and Testament.
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Contact Us
If you have additional questions about a Last Will and Testament, or you wish to get started with your estate plan, contact the experienced California estate planning attorneys at Schomer Law Group APC by calling (310) 337-7696 to schedule an appointment.
