Wills FAQ

The following are some of the more frequently asked questions regarding wills. If you have a question not covered below, feel free to use our contact form to send an email, or pick up the phone and call anytime.

FREQUENTLY ASKED QUESTIONS

What’s so bad about dying without a will – what happens if I die without a will?
If you don’t make a will or use some other legal method to transfer your property when you die, then the State of California, through the probate courts, becomes a partial beneficiary of your estate. The State of California will determine what happens to your property. Generally, it will go to your spouse and children or, if you have neither, to your other closest relatives. If no relatives can be found to inherit your property, it will go to the state. In addition, in the absence of a will, a court will determine who will care for your young children and their property if the other parent is unavailable or unfit.

• The will must be signed by at least two, preferably three, witnesses. The witnesses must watch you sign the will, though they don’t need to read it. Your witnesses, in most states, must be people who won’t inherit anything under the will. (You can do a holographic will, which is a will completely in your handwriting. However, in many cases, these have problems in court, or the court may not be able to read everything in the will.)
• You must date and sign the will. In California, you don’t have to have your will notarized. You do not have to record or file your will with any government agency. Just keep your will in a safe, accessible place and be sure the person in charge of winding up your affairs (your executor) knows where it is.
  

  

I don’t have much property. Do I need a will?
If you don’t have much property, it’s even more important that you have a will, so that the little assets you own aren’t eaten up in probate fees.

Can I name a guardian to care for my young children and manage their property?
Yes, and this is an important part of estate planning. If both parents of a child die or become otherwise unable to care for a minor child, another adult—called a “personal guardian”—must step in. The personal guardian will be responsible for raising your children until they become legal adults. You and the child’s other parent can use your wills to nominate someone to fill this position. To avert conflicts, you should both name the same person.

You can choose that same guardian to manage property that you leave to your minor children or you can name someone different. You can name a “property guardian,” a “custodian”, or a “trustee” to manage the property:

• Name a property guardian. You can simply name a property guardian to manage whatever property the child inherits, if there’s no other mechanism (a trust, for example) to handle it. The guardian will manage the property until the child reaches the age of 18.
• Name a custodian under the Uniform Transfers to Minors Act (UTMA). You can choose a custodian to manage property you are leaving to a child. The custodian will step in to manage the property until the child reaches the age specified by your state’s law—18 in a few states, 21 in most, 25 in several others.
• Set up a trust for each child. You can use your will to create a trust for any property the child inherits and to name a trustee to handle the trust property until the child reaches the age you specify.
• Set up a “pot trust.” If you have more than one child, you may want to set up just one trust for all of them. This arrangement is usually called a pot trust. You name a trustee to decide what each child needs and to spend money accordingly.

Can I disinherit spouses or children?
Disinheriting spouses. The law protects surviving spouses from being left with nothing. California is a community property state, so your spouse automatically owns half of all the property and earnings (with a few exceptions) acquired by either of you during your marriage. You can leave your half of the community property, and your separate property, to anyone you choose.

In all other states, a surviving spouse has a legal right to claim a portion of your estate, no matter what your will provides. But these provisions kick in only if your spouse goes to court and claims that share.

If you don’t plan to leave at least half of your property to your spouse, either through your will or outside it, you should consult a lawyer—unless your spouse willingly consents in writing to your plan.

Regarding children, it’s perfectly legal to disinherit a child. If, however, it appears that you didn’t mean to disinherit a child—the most common example is a child born after you made your will—then the child has the right to claim part of your property.

Can someone challenge my will after I die?

Very few wills are ever challenged in court. Most of the ones that are usually are challenged by a child who feels somehow cheated out of a share of the deceased person’s property. To get an entire will invalidated, someone must go to court and prove that it suffers from a fatal flaw: the signature was forged, you weren’t of sound mind when you made the will, or you were unduly influenced by someone. That’s more difficult to do than it sounds.