As most of us know, drafting a last will and testament is the first step in estate planning, which is the term for how you want your assets to be distributed after you pass away. If you don't have a will (intestacy), your estate will go into probate, and the probate judge will determine who gets your assets and even your personal items. If you have minor children and no will, a judge will also be involved in deciding who raises your children.
Health Day’s recent article, “Wills & Living Wills,” provides some general rules for writing a will:
- In most states (such as CA), you must be 18 years of age or older.
- The testator (author) of the will must be of sound mind for the will to be valid
- The document must clearly state that it’s your will.
- You must name an executor--that’s the individual who will see that your estate is distributed, according to your wishes.
- In California, you must also sign the will in the presence of at least two witnesses who also sign your will in each other’s presence unless it is a holographic will.
- In many instances, notarizing or recording your will is not required. However, it can protect against any claims that it's invalid. In California, a notarized will is invalid if the other elements of creation are not present.
Every state has its own set of rules. Not following those rules can create major costs, stress and even lead to loss of assets for your heirs. Speak with an experienced estate planning attorney to create a will. This is especially important when it comes to blended families. Working with a qualified estate planning lawyer will give you more peace of mind, especially if you have children and must name guardians to rear them.
You and your spouse should have separate wills.
You should also review your will regularly and consider making changes if:
- The value of your assets changes.
- You marry, divorce, remarry, or expand your family with another child.
- You move to a different state.
- Your executor passes away or becomes incapacitated, or your relationship changes.
- One of your heirs or a loved one dies.
- The probate and tax laws affecting your estate change.
If you want to avoid probate altogether, you can create a trust to pass your assets after your death. Often, a trust will keep your asset private and expedite the distribution process.
It’s also important to draft an advance health care directive, which provides directions on what medical care you do or don't want, if you're unable to speak, and a durable power of attorney.
One of the main goals of our law practice is to help families like yours plan for the safe, successful transfer of wealth to the next generation. Call our office today to schedule a time for us to sit down and talk about your estate plan, where we can identify the best strategies for you and your family to ensure your legacy of love and financial security. Our office is located in Santa Ana, CA but we serve all of California including Irvine, Orange, Tustin, Newport Beach, and Anaheim.
Reference: Health Day (March 21, 2018) “Wills & Living Wills”