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Your Last Will and Testament will provide all of the essential details of who will inherit your property, when and how they will inherit it, and who will be put in charge of settling your final affairs. With a will-based estate plan, your Last Will and Testament will cover four important points:
- Who will serve as the Personal Representative/Executor, meaning the person who will be in charge of settling your final affairs and insuring that your beneficiaries will receive their inheritance;
- What powers your Personal Representative/Executor will have;
- Who will inherit your property; and
- How and when your property will ultimately be transferred to your beneficiaries.
Note that if you have minor children, then your Last Will and Testament will also cover a fifth important point: Who will serve as the Guardian for your minor children until they become adults.
In order for a will to be valid in California, it must be signed by the testator, dated, contain testamentary content, and be witnessed by two persons who are in the same room at the same time that the will was signed by the testator or that she or he identified the document as a will and its execution. If the Will is improperly drafted, it will have no effect and the assets will go to the decedent’s next of kin. Next of kin means the decedent’s closest relative, in this order: spouse, child, parents, siblings, grandparents, aunts and uncles, cousins, etc.
Your Revocable Living Trust will cover the four important points listed above, but the person in charge of settling your final affairs after you die will be called your Successor Trustee instead of your Personal Representative or Executor.
Even with a Revocable Living Trust, however, you will still need to have a Last Will and Testament. This is because you will need to fund your assets into your trust before you die so that your trust agreement can govern what will happen to the property titled in the name of the trust after you die. But if you fail to fund even one asset into your trust, then your Last Will and Testament will be necessary to "catch" the unfunded property and transfer it into your trust after you die. In this case the Last Will and Testament will simply function as a "Pour Over Will," meaning that it will provide for the unfunded asset(s) to pour over into your trust after your death through the probate process.
A Pour Over Will only needs to cover two important points:
- Who will be in charge of your assets that were not funded into your trust as the Personal Representative/Executor; and
- What powers your Personal Representative/Executor will have.
Note that if you have minor children, then your Pour Over Will will also cover a third important point: Who will serve as the Guardian for your minor children until they become adults.
Where will the assets that were not funded into your Revocable Living Trust go once they go through probate? This will be determined by the provisions of your Revocable Living Trust.
If you think we can be of assistance with your will or trust drafting, or if you just need advice, please contact us at (415) 989-8070 or write to us.
We look forward to hearing from you.