QUESTIONS AND ANSWERS ABOUT WILLS

1. What happens if I die without a Will?

If you die without a Will, what you own (your "assets") in your name alone will be divided among your spouse, children, or other relatives according to state law. The court will appoint a relative to collect and distribute your assets.

2. What can a Will do for me?

In a Will you may designate who will receive your assets at your death. You may designate someone (called an "executor") to appear before the court, collect your assets, pay your debts and taxes, and distribute your assets as you specify. You may nominate someone (called a "guardian") to raise your children who are under age 18. You may designate someone (called a "custodian") to manage assets for your children until they reach any age between 18 and 25.

3. Does a Will avoid probate?

No. With or without a Will, assets in your name alone usually go through the court probate process. The court's first job is to determine if your Will is valid.

4. What is community property? Can I give away my share in my Will?

If you are married and you or your spouse earned money during your marriage from work and wages, that money (and the assets bought with it) is community property. Your Will can only give away your one-half of community property. Your Will cannot give away your spouse's one-half of community property.

5. Does my Will give away all of my assets? Do all assets go through probate?

No. Money in a joint tenancy bank account automatically belongs to the other named owner without probate. If your spouse or child is on the deed to your house as a joint tenant, the house automatically passes to him or her. Life insurance and retirement plan benefits may pass directly to the named beneficiary. A Will does not necessarily control how these types of "nonprobate" assets pass at your death.

6. Are there different kinds of Wills?

Yes. There are handwritten Wills (called "holographic wills"), typewritten Wills, attorney-prepared Wills, and statutory Wills. All are valid if done precisely as the law requires. You should see a lawyer if you do not want to use a statutory Will or if you do not understand what type of will you need.

7. Who may use the California Statutory Will?

The California Statutory Will is based on California law. It is designed only for California residents. You may use this form if you are single, married, or divorced. You must be age 18 or older and or sound mind. Because wills are governed by state law, there may be a statutory will particular to your state. Forms can generally be obtained from a stationary store, or an attorney.

8. Are there any reasons why I should NOT use a statutory Will?

Yes. A statutory will is a Simple Will. It is not designed to reduce death taxes or other taxes. Talk to a lawyer to do tax planning, especially if (i) your assets will be worth more than $600,000 at your death, (ii) you own business related assets, (iii) you want to create a trust fund for your children's education or other purposes, (iv) you own assets in some other state, (v) you want to disinherit your spouse or descendants, or (vi) you have valuable interests in pension or profit sharing plans. You should talk to a lawyer who knows about estate planning if this Will does not meet your needs. This Will treats most adopted children like natural children. You should talk to a lawyer if you have stepchildren or foster children whom you have not adopted.

9. May I add or cross out any words on a statutory Will?

No. If you do, the Will may be invalid or the court may ignore the crossed out or added words. You may only fill in the blanks. You may amend a statutory Will by a separate document (called a codicil). Talk to a lawyer if you want to do something with your assets which is not allowed in the standard Simple Will form.

10. May I change my Will?

Yes. A Will is not effective until you die. You may make and sign a new Will. You may change your Will at any time, but only by an amendment (called a codicil). You can give away or sell your assets before your death. Your Will only acts on what you own at death.

11. Where should I keep my Will?

After you and the witnesses sign the Will, keep your Will in your safe deposit box or other safe place. You should tell trusted family members where your Will is kept. (Some experts suggest that keeping a will in a safe deposit box is a mistake, because then your heirs might have difficulty getting access to it).

12. When should I change my Will?

You should make and sign a new Will if you marry or divorce after you sign any Will. Divorce or annulment automatically cancels all property stated to pass to a former husband or wife under a statutory Will, and revokes the designation of a former spouse as executor, custodian, or guardian. You should sign a new Will when you have more children, or if your spouse or a child dies. You may want to change your Will if there is a large change in the value of your assets.

13. What can I do if I do not understand something in a Will?

If there is anything in a Will you do not understand, ask a lawyer to explain it to you.

14. What is an executor?

An "executor" is the person you name to collect your assets, pay your debts and taxes, and distribute your assets as the court directs. It may be a person or it may a qualified bank or trust company.

15. Should I require a bond?

You may require that an executor post a "bond." A bond is a form of insurance to replace assets that may be mismanaged or stolen by the executor. The cost of the bond is paid from the estate's assets.

16. What is a guardian? Do I need to designate one?

If you have children under age 18, you should designate a guardian of their "persons" to raise them.

17. What is a custodian? Do I need to designate one?

A "custodian" is a person you may designate to manage assets for someone (including a child) who is between ages 18 and 25 and who receives assets under your Will. The custodian manages the assets and pays as much as the custodian determines is proper for health, support, maintenance, and education. The custodian delivers what is left to the person when the person reaches the age you choose (between 18 and 25). No bond is required of a custodian.

18. Should I ask people if they are willing to serve before I designate them as executor, guardian, or custodian?

Probably yes. Some people and banks and trust companies may not consent to serve or may not be qualified to act.

19. What happens if I make a gift in this Will to someone and they die before I do?

A person must survive you by 120 hours to take a gift under this Will. If they do not, then the gift fails and goes with the rest of your assets. If the person who does not survive you is a relative of you or your spouse, then certain assets may go to the relative's descendants.

20. What is a trust?

There are many kinds of trusts, including trusts created by Wills (called "testamentary trusts") and trusts created during your lifetime (called "revocable living trusts"). Both kinds of trusts are long-term arrangements where a manager (called a "trustee") invests and manages assets for someone (called a "beneficiary") on the terms you specify. Trusts are too complicated to be used in this statutory Will. You should see a lawyer if you want to create a trust.

Laws governing wills and probate and succession are all state laws. Information for this paper was derived from general information relating to California law. In order to inform yourself regarding applicable laws governing wills and probate in your state, refer to your state's probate law. Laws governing wills are generally uniform, however, there are peculiarities that exist in various states, which are unique to those states. Any person who has a question regarding wills or probate is urged to seek the advice of an attorney.