Many people have a mistaken belief that a Will serves any number of purposes. Some of the misconceptions are as follows:
- If I have a Will I avoid the Probate Court system.
- My Will controls the disposition of all my assets.
- My husband needs a Will since he owns a business but I don't need a Will because all our other assets are jointly owned.
- I have added all my children's names to my bank accounts and to real property deeds, therefore, I have no need for a Will.
- Since I can write my own Will I have no need for a lawyer.
- I have a Trust, therefore, I do not need a will.
The principal reasons for having a Will are to change the formula set by the state as to who gets what assets; naming a guardian for minor children; choosing a Personal Representative (Executor); setting aside specific assets for certain individuals or charities; and/or creating a Trust to delay the distribution of assets to persons who may not be ready to manage large sums of assets. Having a Will does not eliminate the need to file the Will with the Probate Court. The Will must be submitted to the Court to enable the Personal Representative to receive Court authority to gather up the assets.
A Will controls those assets which are your separate property and one-half of the community property, if you are married. Joint bank accounts, shares of stock with co-owners (with right of survivorship), real estate held in joint tenancy with others, jointly owned brokerage accounts, life insurance and Individual Retirement Accounts with designated beneficiaries are some of the assets not controlled by your Will. A different set of laws controls each one of the assets described. One must look to those laws to see who owns the asset at the time of death. A common question is whether both spouses need a separate will. Who is to say which spouse will pass away first? So, it is recommended that each spouse have his or her own will so that their personal desires are made known, even if one spouse has considerably more separate property than the other.
California law permits an individual to write his or her own Will, with or without witnesses. The details as to executing the document properly are expressed in the California Probate Codes. You can also obtain a copy of a Statutory Will. This is a do-it-yourself form with no explanation of the laws.
The principal reason one uses a lawyer in making a Will is to have a person knowledgeable of the law examine the facts surrounding a person's ownership of assets and the facts surrounding who the person favors most in the disposition of his or her assets. It is only through a questioning process that a proper Will can be prepared. Only a lawyer can examine the entire picture and legally explain what happens in each person's unique situation. A Will is prepared taking into account all of the facts surrounding that person's family history, assets and desires as to who should get what. Many people have turned away from the use of a Will and prefer the use of jointly owned assets to avoid probate court. You may have heard tales of great delay and heavy court expenses associated with probating a decedent's estate. In California, the laws regarding probate have been modernized. Rigid controls exercised by the court in previous years have been modified.
The Will needs to be deposited with the court for safekeeping. The time to complete an administration of a normal estate valued under $2,000,000 is approximately six to eight months, depending on the complexity of the assets and the Court calendar. There is no longer an estate tax for an estate valued less than the Federal Estate Tax unified credit. In most cases, estates under $2,000,000 are exempt from estate taxes.
Even if a Trust has been established, it is recommended that a Will be executed. An estate with a value of $100,000 or under, that has not a Trust asset, need not be probated. But, being outside of the Trust, the distribution of said assets will be distributed to your heirs under Intestacy Laws (i.e., as though you died without a will), rather than the designated beneficiaries as set forth in the Trust if you did not have a Will. Having a Pour Over Will, you can distribute any assets, which were not funded into your Trust, to the Trust. Those assets are then distributed according to the trust terms. An estate with a value exceeding $100,000 will have to be probated, incurring unnecessary legal costs including, but not limited to, Court filing fees, publication fees, statutory compensations to the Personal Representative and to his or her attorneys, and other incidental probate expenses.
Currently, the statutory compensation to each - the personal representative of the estate and to his or her attorney is the following:
· First $100,000 of the value of the estate assets, not taking into consideration any encumbrance – 4%
· Second $100,000 – 3%
· Next $800,000 – 2%
· Next $9,000,000 – 1%
· Next $15,000,000 – 0.5%
· All amounts over $25,000,000 will be determined by the Probate Court
This expense can be avoided if a proper estate plan is established.