California law requires that a person have a Will upon their death in order to distribute the assets of the deceased person (decedent).
The California Probate Code has certain specific requirements for a Will to be legally valid, including a “holographic” (hand-written) Will and a typewritten Will (which must be witnessed by two (2) individuals who are not beneficiaries).
A Will typically includes certain provisions, such as the identity of family members, the identity of the beneficiaries, the specific gifts (known as “bequests”) to be given to specific individuals or entities, and naming an Executor who will gather the assets (known as the “decedent’s estate”), pay the estate’s debts, and distribute the balance of the estate to the persons selected by the decedent to receive those assets.The Executor is responsible to file the Will with the Court, and determine if a probate or summary proceeding is required in order to transfer the estate’s assets to the proper heirs or beneficiaries.
If the person making the Will has minor children, the person can designate a certain person (known as a “guardian”) to care for the decedent’s minor children in theevent of death.
The California Probate Code governs the probate process which can be frustrating, costly and time-consuming. The Superior Court of the State of California oversees each step of the probate process, including the filing of an inventory and accounting. Court hearings are required at various times before the estate can be distributed pursuant to an “Order for Final Distribution.”
Pour-Over Will:
A Pour-Over Will is a Will created to “pour” the assets into a revocable or non-revocable Trust (rather than designating certain individuals or entities to receive the estate’s assets as beneficiaries). The Trustee of the Trust will oversee the distribution of the estate’s assets to the beneficiaries named in the Trust.
Probate Avoidance:
In California, there are certain methods that can be selected to avoid probate for almost any asset, including the creation of a LIVING TRUST.
In order to avoid probate, it is strongly recommended that you seek the legal advice of an estate planning professional in order to discuss the various options for distributing the assets of your estate to the persons or entities you select and, if possible, to avoid the probate process.
With the assistance of a knowledgeable and experienced estate planning attorney, you can avoid the lengthy and often expensive probate process and the potential for unnecessary tax liabilities.
Attorneys Sandra A. Reising and Linda L. Harper are knowledgeable and experienced estate planning and trust attorneys who are available to assist you with your estate planning needs.