What is a Will?
A Will is a legal document which only becomes operational at death. Therefore, you can change your will as many times as you desire during your lifetime and when you pass away, it is your last will that controls.
A will can be hand drafted by you or attorney drafted. We strongly recommend that a will be attorney drafted because there are several legal requirements that are necessary to be contained in a will in order for it to be valid and enforceable. You don’t get a second chance, so do it right the first time!
A will should cover such important issues as:
This is the person or entity you choose to follow the directions in your will and administer your estate in accordance with applicable laws (generally with the help of an attorney who specializes in this area). You should name one or two alternate Executors who would serve, just in case your initial Executor predeceases you, cannot act for you, or simply has decided not to serve as Executor.
2.Guardian of the Person
If you have minor children, it is imperative that you name a Guardian of the Person who would oversee raising your child or children should you die. If you fail to make such an appointment, then someone (who you may not have chosen at all) will need to petition the court to become legally appointed as Guardian of the Person. Naming alternates is important here as well.
3.Guardian of the Estate
This is the individual or entity who may be required to hold assests you leave to your minor child or children until the child becomes an adult. The guardian could use their assets for the health, education, support and maintenance of the minor child, but when the child becomes an adult (in California that is age 18) the assets are legally required to be transferred to the child. Many parents say they would turn over in their grave if the assets were handed over to their child when he or she is 18 because the visions of uncontrolled spending, fast cars, and week long parties flash before their eyes! There are ways to avoid this disaster from occurring by using a testamentary trust in the will. See Will.
4.Distribution of Specific Items
In your will you can leave certain items such as a treasured ring, family heirloom or particular piece of real estate to a person you designate.
5.Distribution of the Balance of your Estate
Contrary to popular belief, a will does not generally control who receives your life insurance proceeds when you die, nor who receives your retirement or annuities. The beneficiaries of these assets is usually determined by the beneficiary designations you directed for the particular asset (if you made any at all- check to see). Also, assets you own in joint tenancy with another person will automatically pass to the survivor of you, regardless of the fact that your will may leave the joint tenancy asset to another person. Hence, coordination of these types of assets with your true ?? and with the terms of your will is of the utmost importance, otherwise what you think will happen may not come close to the legal reality that results.
After getting the above in proper form, so your intent will actually be legally implemented, you can leave those assets which will pass through your will in a variety of ways. Listed below are only some examples.
Minor children- Through your will, you can leave assets to minor children in three basic ways:
As discussed some above, you can leave assets to a designated guardian, who will be confirmed by the court to hold assets for the health, education, support, maintenance and general welfare of the child until the child becomes an adult (age 18 in California). At age 18, the guardianship is terminated by the court and the guardian transfers title to the assets to the child, The child, is now the owner of the assets and can do with them as he/she pleases. (A frightening thought to many!)
If you believe age 18 is too young for distribution to ta child, you have the ability to provide for the assets to be held by a person you designate as a custodian for the child. The custodian acts in the same capacity as the guardian above, except you provide for the one time distribution to take place at an age between 18 and 25. For instance, you could leave all or a portion of your estate to “Mary Magnificent as Custodian under the Uniform Transfer to Minors Act until age 23.” This language will cause the assets to be used for your child’s welfare under the supervision of your trusted friend, who won’t distribute the assets remaining until your child reaches age 23. (A more comforting result for some parents who believe the child will be more mature and better quipped to handle the distribution).
For those of you who believe age 25 is still too young for outright distribution of an entire inheritance, or who desire to make more than one distribution, the creation of a testamentary trust in your will may be the answer. A Testamentary Trust in a will is a trust arrangement that begins at the time of death. All of a portion of your estate can be directed to be housed in a trust and managed and distributed in accordance with your wishes. For example, at the death of an individual or a husband and wife, assets can be placed into a trust in equal shares for the benefit of the children. The assets will be used for the health, education, support and maintenance of the child and perhaps one-third of the trust assests will be distributed to the child when the child reaches 25, another one-third at age 30 and the remainder at age 35. This trust arrangement only permits distribution at ages desired by you (allowing for maturity to occur before placing assets into a child’s hands) and directs multiple distributions (here, 3 strikes), so if the first distribution is blown, the beneficiary was prevented from blowing the entire inheritance and had to wait another 5 years before the next distribution.
Adults- Through your will, you can leave assets to adults in two basic ways:
Distribution of an asset or assets can be made immediately and directly to a beneficiary who will own the asset(s) 100%.
Just like the testamentary trust described above, you can direct the assets left to an adult to be held in trust for a certain period of time, until certain ages are attained, until a certain event occurs, or over a person’s lifetime.
An example is to create a will with testamentary trust for the benefit of an elder parent. The assets will be used for the parent’s needs throughout the remaining life of the parent and at the parent’s death, the assets will pass to a person or persons you direct.
If you create a revocable trust, you will also be given a “Pour-Over Will.” A “Pour-Over Will” means simply that any assets not in the Trust at the time of your death will be “poured” into your Trust upon your death. If all of your assets are transferred to your Trust, your Will need not be probated.
The Pour-Over Will serves as a safety net. It should not be relied upon to transfer assets to your Trust because the Pour-Over Will may have to be probated depending on the value of the assets you have left out of the Trust. It is best to have the appropriate assets transferred to your Trust so as to avoid probate completely.