Last Will and Testament (Will)

Without proper planning, your assets will be distributed according to the California intestate succession laws, and not by your wishes. Under intestate succession, who gets what property is dependent on who your closest relatives are when you die. Under intestate succession, only spouses, registered domestic partners, and blood relatives can inherit. The percentage that they each receive is designated by California law. In the rare instance that no relatives can be found, the state will inherit your assets.

In contrast, a Will grants you the opportunity to disperse your property to whom you wish, arrange care for your children or pets, and any other express wishes you may have in the event of your death. A Will provides the opportunity to leave property to your church or disinherit a child who is estranged. If you pass away without a Will or estate plan, the probate court will make decisions not predetermined by intestacy laws for you. Additionally, while your heirs may be on good terms with each other during your lifetime, it is not uncommon for large battles to ensue in probate court after the death of a loved one because things were not left clear for inheritance.

It is important to note that there are some setbacks in having a Will instead of a trust.

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A Will won't prevent your estate from going through the probate court process, but a trust does. Even a fairly simple trust can reduce the impact of probate on the assets placed inside it. The formal probate court process typically takes approximately a year, and has various mandatory fees which can deplete inheritances of your loved ones. Your heirs will be able get their inheritance quickly and without substantial costs with the help of some simple planning through the use of a trust. Therefore, it is important to weigh out the options with an attorney who can advise you what might be your best option given your individual circumstances.

It is also important to note that a living trust does not remove all need for a Will. Generally, you would still need a special kind of Will — known as a Pour Over Will. This is a very simple will that complements a trust. A Pour Over Will simply states that any assets that do not have probate-avoidance mechanism in place should go to your trust when you die. This document aids in expediting the disbursement of your estate for anything you forgot or neglected to place in your trust. 

Feel free to reach out to an attorney at Fyfe Law Firm who can advise you on how to best structure your estate plan to provide for all of the "what ifs." Call us at (858) 412-7714.

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