Do you need a Will?

Not to sound evasive but, like most legal questions, it depends.

What is a Will?

A will is a legal document that states how you want your property distributed when you pass away.  In California, there are different ways to properly create a will.  Regardless of the type of will created, one must have “legal mental capacity” or “testamentary capacity”, which means that the person making the will must know who the natural objects of his/her property would be (i.e., spouse of children), what his/her property consists of, and must understand that by executing a will, s/he is naming the person(s) who will receive his/her property upon death.

A will can be created without anyone else knowing its contents.  A “holographic” will is a will that is written entirely in the “testator’s” own handwriting, and then signed and dated.  Other wills require the signatures of two witnesses.  These witnesses do not have to read the will; rather, they simply acknowledge that they know the person executing the will is of sound mind and stated that the document is his/her will.  In California, wills are not notarized.

What is a codicil?

A “codicil” is simply an amendment to a will.

What is a “pour-over” will?

A “pour-over” will is used in conjunction with a trust.

This type of will usually states that certain people will receive specific pieces of personal property (for example, I give my grandfather’s watch to my cousin Sally; my train collection to my nephew James, etc.).  The rest of the personal property (i.e., furniture, clothing, appliances, etc.) are to be “poured over” into a trust, and will be distributed according to the terms of that trust.

Let’s say that mom and dad have a revocable trust and a pour-over will.  Dad has since passed away, and mom is the sole trustee of that trust.  The trust says that when both mom and dad are deceased, then all assets owned by the trust are to be divided equally among their three children (including one daughter).  Daughter is named as the successor trustee of the trust.

Mom also has a pour-over will that names daughter as “executor”.  This pour-over will also states that daughter will receive mom’s wedding ring.  Son #1 will receive dad’s gold watch and son #2 will receive dad’s trophy collection.  The rest of mom’s estate shall be poured over into the trust and distributed according to the terms of the trust.  Now mom passes away.

As executor of mom’s pour-over will, daughter’s duty will be to give herself mom’s wedding ring, and to make sure she gives dad’s gold watch to son #1 and dad’s trophy collection to son #2.  She’ll get receipts to prove this was done.

The rest of mom’s estate will now have been (figuratively) poured-over into the trust.  Now, all of mom’s remaining personal property (furniture, clothing, appliances, etc.) are owned by daughter, but as the successor trustee of mom’s trust.  Daughter’s duty, as successor trustee, is to evenly distribute all of the trust’s assets to the three children, including herself.

Let’s walk through this process.

One of the personal property items that is “poured-over” into mom’s trust is a coffee table.  As successor trustee, daughter can’t cut the table into three equal parts for distribution.  Instead, she can get together with her two siblings and, hopefully, all can come to an agreement as to the value of the table (and all other personal property items).  Then, daughter can distribute the personal property items so that each child receives essentially the same amount in value.

What are the advantages of a Will?

If real property is owned, then the only advantage is that the will identifies the person who is to receive that property.  With real property, a will does not avoid the need to probate the estate.  In fact, a will virtually guarantees that a probate will be required.  There are some small estate exceptions, but few real properties in California are worth so little money that they would meet this exception.

If no real property exists, and there is no other property in which title must be transferred by a judge then, again, a will serves to identify certain personal property items that will be distributed to specific persons.  It also names an executor whose duty is to carry out the instructions given in the will.

Under this scenario, and assuming all parties cooperate (executor and beneficiaries), there will probably be no need for court intervention.  The executor simply delivers the specific personal property items to the identified individuals, obtains receipts, and the matter is closed.  There was no reason to ask a judge to do anything.

What are the disadvantages of a Will?

Again, if real property exists (or other property that requires a change in title/ownership), then the will must go through the long and expensive probate process in order to obtain the court’s authority to change title/ownership.  This may take a year or longer, as a “notice to creditors” must be published in a newspaper, and all known heirs and relatives to the second degree must receive notice that a probate case is pending.  The potential creditors have 120 days to file a creditor’s claim with the court.  Right from the beginning, there is an automatic four month delay after the petition is filed and the newspaper publication begins.

So, to answer the original question: Do you need a will?

If you do not have a trust, then you only need a will if you want to decide who receives your property when you pass away.  If you have no will and no trust, then the laws of intestate (dying without a will) succession will determine who receives your property.  Essentially, this will be your next of kin.

Perhaps the better question is:  Do you want a will?

Answer:  Definitely, yes!