A legal will ensures that certain instructions are carried out after a person's death. Such instructions include the distribution of assets and guardianship rights over minors. Every state has different requirements for legal wills; however, an understanding of how legal wills function in California is helpful during the creation process.
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A legal will may name any individual to receive the testator's assets. Usual beneficiaries include family members, domestic partners, charitable organizations, spouse or friends. California also allows a corporation, county, city, unincorporated association, state, the United States or a foreign country as beneficiaries. Assets can be divided immediately after the testator's death or under any specific instructions indicated in the will. Such instructions may include an age minimum or a conditional requirement. Former spouses may be stricken from a legal will if it was created before a divorce. Removal from the will revokes any disposition of property, special appointment or nomination as executor, trustee, conservator, or guardian, made to that individual.
A legal will can appoint a guardian for the testator's minor children, in case he and his spouse die. The guardian, or a different person, may be designated to manage the child's assets until she turns 18. This allows the testator to entrust his children to a person he trusts rather than at the discretion of a court.
A testator may name an individual as the executor of the estate. The executor manages the testator's assets to pay off any debts, expenses or taxes that are due upon the testator's death. After such expenses have been paid, the executor must distribute the rest of the assets in according to the instructions in the legal will. Testators may wish to assign this role to a trusted friend or even his attorney.
The legal will can distribute any assets that are currently owned by a testator and titled in his name. This includes any property, money, bank accounts or other valuables. Assets that do not follow the instructions on a legal will include life insurance, retirement plans, joint tenants with right of survivorship, community property with right of survivorship, living trusts or spouse's half of community property. Such property will be inherited according a previous contractual agreement. For example, life insurance policies will be distributed to the beneficiary named in the policy contract. A legal will stating otherwise will have no affect on this agreement.
Changes and Revocation
Any assets obtained after a will is created may be distributed in an undesired manner, so it is best to update a will after large acquisitions of property. A will may be changed as often as the testator prefers. Changes may be made through an amendment or a new will. New wills may be chosen when there are drastic changes in the testator's life such as marriage, divorce, domestic partnership or property loss.
Holographic Legal Wills
All California legal wills must be typewritten; however, holographic wills may be accepted under certain conditions. A holographic will is a handwritten signed will. California accepts this as a legal will if it is proven by a court that the document's handwriting is that of the testator's and the document contains the necessary sections required of every will. Handwritten wills, in general, risk being contested in court. Such wills often leave out important language, create ambiguity or have an unintended result. Holographic wills, however, are useful on a last resort basis.
Dying Without a Will
Dying without a will can result in assets being distributed in an unintended manner. However, without guidance, California must resort to statutory law to determine how best to distribute assets. California law designates that absent a will, a surviving spouse may receive all community property owned jointly with the deceased. The surviving spouse will also receive part of the deceased's separate assets, but the rest will be distributed to the deceased's close relatives, including children, grandchildren, siblings, parents, nieces and nephews. If the surviving spouse died before the deceased, her relatives may be entitled to portions of the deceased's estate. Registered domestic partnership or unmarried individuals will have their assets distributed to children or close relatives. In either situation, without a will, unregistered domestic partners and close friends are not entitled to any of the deceased's assets.
References & Resources
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