Last Will and Testament
What does a Will do for me?
Below is some general information regarding the purpose and function of a Last Will and Testament. This is a very cursory overview and further questions, including whether a Will is appropriate for your estate planning, should be directed to a qualified attorney.
A Will provides for how you want your assets to be distributed. It allows you to name “beneficiaries” (people or charities who receive your property), a “Guardian” (who raises and cares for minor children) and an “Executor” (who inventories and distributes your assets according to your wishes).
Not all property is distributed via your Will. Certain assets are transferred differently as follows: life insurance and retirement plans (which are payable to named beneficiaries); assets held in joint tenancy (which means the survivor takes the property outright at death – ie: your home); pay or transfer on death ie: “POD/TOD” accounts (which transfer to the named beneficiary outright); and, assets held in a revocable living trust (which is discussed separately on this website).
The provisions of a Will are carried out through a process known as “probate.” Probate is the California court-supervised process which transfers your assets at your death to the beneficiaries listed in your will. If your assets total more than $150,000 at your death (not including retirement plans, joint tenancy property and other items discussed above), then probate will be required whether you have a Will or not.
Contrary to popular belief, having a Will does NOT avoid probate. In fact, it is just the opposite and the problem is that probate can be expensive (4% of the first $100K; 3% of the next $100K; 2% of the next 800K; is statutorily prescribed just for attorney’s fees alone!).
Secondly, probate requires a full inventory of your assets that becomes part of the public record. Finally, distributing assets via probate is often a lengthy process that can mean beneficiaries don’t receive the assets for a long time after your death. If this reality gives you pause, you might want to consider a Trust for your lifetime protection and the transfer of your assets.