There at least eleven questions every will should answer in California. People who try to write their own wills are usually not familiar with the terms of art used by lawyers when they write wills in California.
- WHO WILL BE YOUR EXECUTOR? The question of who should be entrusted with your estate to administer your will involves probably the most important decision you make about your estate. Your executor should be honest, money savvy, and stable. If you had to choose between someone who is money savvy or one who is simply honest, pick the honest one. The ultimate goal in estate planning is to get the assets to your beneficiaries, so honesty is the most important character for any executor.
- WHO WILL REPLACE YOUR EXECUTOR, IF HE DIES? If your executor dies, there needs to be an equally honest person who will administer the estate. Needless to say, your children will be most likely the ones to replace your spouse who may be named as the number one executor.
- SHOULD YOUR EXECUTOR BE BONDED? Most people waive the requirement of the bond when it comes to executors who are close family members. Waiving the bond means you are relying completely on the integrity of your executor in handling the estate. If you want accountability tied to an indemnity contract (bond), then you can require that the bond be posted before your executor is appointed.
- WHO SHOULD RECEIVE ANY PART OF YOUR ESTATE? Where possible, you should name people and percentages they will get from your estate. Many times just naming a category of persons to get the assets creates more confusion and something for the courts to decide. For example, if you say X to all of my grand children, you should specify what happens to the share of after born grandkids.
- THE REASONS FOR DISINHERITING A CHILD: Litigation in estates is very common when a child is disinherited, or if the share of a child has been significantly reduced in subsequent wills. If you are for example, reducing a child’s share because you lent him money and he did not repay you, you should say so in your will.
- WHO SHOULD RECEIVE YOUR ASSETS WHEN YOU PASS AWAY? These are your beneficiaries. You should name them with percentages to avoid confusion about determining members of a category of beneficiaries. For example, if you leave assets to grandchildren, you should say whether after-born grandchildren, adopted grandchildren, or step-grandchildren should receive anything.
- WHO WILL GET YOUR ESTATE IF ANY BENEFICIARY DIES? These are called contingent beneficiaries. If a beneficiary dies, you should either name someone else as a contingent beneficiary, or state that his share shall simply lapse. A lapse in the share is the equivalent of the other beneficiaries getting his share.
- WHO GETS THE ESTATE IF THERE ARE NO BENEFICIARIES LEFT? A common provision in wills is a residuary clause. A residuary clause defines what happens to the estate if all the beneficiaries who are named die. You would be surprised how often this provision is triggered in court.
- WHAT HAPPENS TO THE INHERITANCE IF A BENEFICIARY OR CHILD BECOMES DISABLED? Special needs trusts are the way to leave an inheritance to a disabled child or to a beneficiary who is receiving SSI or who is a Medi-Cal beneficiary.
- WHO WILL BE THE GUARDIAN OF YOUR MINOR CHILD IF YOU DIE? If you have minor children, the will is the place you select guardians. Guardians of person are those your minor child will live with. Guardians of estate are those who will handle the money of your children. They can be the same people, but they are not required to be the same persons.
- WHAT POWERS ARE YOUR GIVING YOUR EXECUTOR? You can specify if your executor has all the general powers of an executor, or you can choose to limit some of their rights, or can expand their duties. An example of an expanded duty can be that the executor has to evaluate the financial well-being of a beneficiary or freedom from a known addiction before making a distribution to him. An example of modifying the duties of an executor is not to require him to comply with California’s Prudent Investor Rule. This rule requires that there be diversification of assets during administration.
When you are ready to make your will, call attorney Mina Sirkin, Specialist in Estate Planning is Los Angeles to help you put your estate in order. Call 818-340-4479 or email us here.
