Will Questions & Answers
AIDS Legal Services Project

1. Why should I do a will? I have very little property to leave to anyone.

A will isn’t just for the rich. It will help the people who are closest to you know what to do with your belongings, car or bank account. Even with a small estate a will is a mechanism to assert control over your life, to help protect your privacy and to make specific gifts of personal belongings, memorabilia, car, furnishings, and things of sentimental value. Also, the person named as executor has legal control over and custody of your property so that people who are not welcome can be prevented from rummaging through your belongings or invading the sanctity of your privacy.

2. What happens if I don't do a will?

If you die without a will, the law of "intestate succession" determines who gets your money and property. This usually means your next-of-kin, such as lawful spouse, children, parents (in that order) and down on the line to remote cousins and even relatives of half-blood. If you have no living relatives, the State gets everything you own.

3. Can my partner or spouse be the primary beneficiary and the Executor?

Yes. Indeed, it is usually suggested that the primary heir be named as executor of a will for maximum control. The executor's duties are very important: They are responsible for preserving and administering your property, hiring an attorney to handle the probate proceeding in court (if needed), and other details such as paying (or declining to pay) creditors of the estate, making an inventory and filing an appraisement of property such as real estate. Finally, the executor is responsible for paying taxes assessed against the estate and distributing the net proceeds of the estate to the heirs designated under your will. If the executor is the sole beneficiary, then they literally distribute the assets to themselves once the estate is ready to be closed.

4. Can the Executor live out of state/city?

Yes. Normally, it is preferable for the executor to be geographically close to the county where you live or where your principal assets are situated. But legally speaking, the executor can live anywhere.

5. What is probate?

Probate is a legal procedure that transfers a decedent's property to the designated heirs according to the specifications spelled out in a will, or, in the absence of a will, to the next-of-kin. A petition for probate must be filed in the Superior Court of the county where the decedent died or where property is situated if the estate is worth more than $166,250. Probate is designed to keep things moving, to determine whether the will is valid, to provide the heirs with their intended property, and allows for the orderly payment of lawful creditor's claims.

6. Since I own very little, does it still need to go through probate?

No. As mentioned, probate is not for estates under $166,250. However, certain technical procedures still must be observed for small estates. Namely, a petition (affidavit) must be prepared, usually by an attorney, conforming to specific statutory requirements. This petition need not be filed with the court but is presented to banks and other institutions so that money can be transferred over to the heirs. For more information see http://www.courts.ca.gov/10440.htm

7. Will my beneficiaries be liable for my debt?

No, not directly. Creditors such as banks, credit card companies, merchants, doctors, and so forth must file a formal creditor's claim with the executor, and if approved, the executor will pay the debts out of available cash. If the executor declines to pay certain debts that are disputed, the creditor may have a hearing, and the judge will decide. Distribution to the heirs takes place only after creditors have been paid.

8. Can I put funeral instructions in my will?

Yes. Funeral instructions can be spelled out in a will and are legally enforceable even before the will is admitted into probate. Also, you can specify funeral instructions in a document separate from the will, such as an Advance Healthcare Directive, which can be given in advance to a funeral director and others to ensure your wishes are understood.

9. Can I nominate a guardian for my children in my will?

Yes. This is very important. If you have minor children (under the age of 18) you can use your will to designate a legal guardian and an alternate.

10. Can I write out my own will? How do I do it?

Yes, handwritten or “holographic” wills are legal in California. However, they are usually intended for situations such as emergencies, or if you are not able to get to a lawyer. If you were to write out your own will, it must be handwritten, state that it is your “last will and testament,” and clearly explain what you are leaving and to whom. You must date and sign the will. A handwritten will does not need to be witnessed. Since probate laws are very specific, you may want a lawyer to check a handwritten will to be sure that everything is done correctly.

11. Does my will need to be witnessed? Who can witness my will?

A printed will must be signed in the presence of two or more witnesses. The witnesses must be competent adults (over the age of 18) who are not heirs or relatives. They should be people who are likely to survive you and who can be readily located in the future, as they will be called upon to sign a proof of subscribing witness IF the will needs to be admitted into probate.

12. Does my will need to be notarized?

No. However, lawyers will frequently have a will notarized in addition to (not instead of) being witnessed, as an added precaution. This way, if a dispute arises later, the notary may be called upon to testify in court as to the circumstances of the will signing. But there must still be a minimum of two witnesses in addition to the notary.

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