Orange County Wills Attorneys

A will is a document that you execute that tells others what you want done with your estate after your passing. Wills can be created easily. However, done improperly, they are one of the most litigated probate issues in our California Courts. Therefore either consult us for your needs or do your homework if you intend to create a will.

Remember This Caution: A will is an instruction to the Probate Court. YOU MUST ENTER PROBATE OF A WILL UNLESS YOUR ESTATE IN CALIFORNIA IS SMALL. Most people own a home and therefore must enter probate with a will. The cost of an attorney, as well as the need to transfer property title in Court, is expensive. Therefore wills are archaic in today’s legal environment. Naturally most probate lawyers will not tell you this, because the chances are that if you pass with a will, they will get a call to help with the Probate proceedings, and of course make large fees in the process.

With the improvement in Trust law in the last twenty years, trusts are no longer a tool only for the rich. The middle class, and even anyone who owns a home can now turn over their estate to a Trustee they trust, to dispose of their property without Courts and Lawyers, saving the estate tens of thousands of dollars. Wills are now useful for only those with little assets. If you own a home or have some assets, consider a trust and see “Setting up a living trust“.

For those of you who wish to write your own will, here are some guidelines and an overview. A will, executed in California, should state who you are, what your estate consists of and where you wish your estate to go. You should have an administrator appointed that you select, called an executor. Your will should be witnessed by two people at the time you sign the document. While the rules have been eased for signing and affirming wills, the more formal you make the execution of the document, the more likely that you will not leave a problem or dispute after your passing, that could pay your estate to attorneys, instead of your family, friends or non profit institutions. Here are the basic will provisions.

A simple form is available from many legal sources. Here is one link for you to use from the America Bar Association, necessities of a will. All wills should at least contain these 8 subjects:

1. First, you should include a statement of who you are, where you live and that you declare the document to be your last will and testament. You should also revoke any prior wills made by you.

2. You should make provisions for you funeral expenses, burial or cremation and make provisions for the payment of those expenses and other debts due at the time of your death.

3. State your gift (Bequeath) to family, friends or institutions of your money and personal property. As an example you can state “I leave all my estate to my son _______, including all insurance, personal property and personal items.”

4. Make provisions for your real property, homes, and real estate. Should it be given outright to your family member or spouse? Remember you really should be considering a trust if you have a home to bequeath. Do you wish the house sold and the net proceeds after sale to be given to your son or family member? Make your wishes clear and you will save a lot of fighting over your will contents.

CAUTION If you wish to give a life estate to someone, (they can live in the house until death and then the house is directed to another), you should not attempt this by yourself. A qualified attorney must be consulted to address the many issues that would arise, such as who pays for the maintenance and upkeep, what if the estate cannot pay the estate taxes and must sell the house and what if the person living in the house does not care for the house properly. Spend the money for a professional and you will rest peacefully that the issue is properly drafted.

5. Give the residual of your estate not mentioned above, to the person or persons you wish to allocate the balance of your estate.

6. Always make a provision for payment of taxes. The Government will want their share of all sale proceeds, earnings and income taxes as well as estate taxes. Do you want to pay those from your estate first, or provide the property to a loved one and make them pay the taxes? Either way will require the payment of taxes, but if you want, for instance, to give an equal amount to each beneficiary, then paying all taxes before distribution ensures the result you desire. Also note that some beneficiaries are not sophisticated enough to understand your gift and the burden of taxes when they receive the gift. Therefore if they spend the gift immediately, the government can still come after the estate, thwarting your intent and possibly reducing another beneficiary’s gift.

7. Are any of your beneficiaries minors? If so, do you really want to give them cash that their parents may spend, or give an 18 year old a substantial amount of money? You should consider a trust if this is the case, as a will cannot properly protect the minor, or research a gift under the Uniform Transfer to Minors Act.

8. Appoint a person to act as your representative or executor of the will. This person will carry out the will instructions under the Court’s supervision and dispose of the property, as you want them to do. Remember, a will must be probated unless your estate is small. Therefore to avoid the cost and frustration of probate, consider having a trust drafted. A trust is self-executing without Court interference unless there is a problem and saves much of the probate attorney fees and costs.

Lastly, you must sign your will, and ideally have it either notarized or have two witnesses sign it. Here is a clause to add to your will to make the witnesses even stronger for the attestation (validating) of the will:

“On the date indicated below, _______ declared to us that this instrument, consisting of _____ pages, including the page signed by us as witnesses, was their last will and testament and requested us to act as witnesses to it. It was signed by ______ in our presence. We now, in the presence of ________ and in the presence of each other, subscribe our names as witnesses. It is our belief that ________ is of sound mind and memory and is under no constraint or undue influence.

We declare under penalty of perjury that the foregoing is true and correct.
(DATE AND SIGN BY TWO WITNESSES)

We hope this helps you in the evaluation of your need for a will or trust. If you wish to consult us, we always offer a free consultation to discuss your options. Call us at (888) 752-7474 or follow this link, Contact Us online.