But everybody knows that the main purpose of a will is usually to dispose of your assets and effects. In its most basic form, a will should include these important parts:

• The testator’s (Will-Maker’s) name and crucial information
• Nomination of an executor to carry out the wishes of the testator
• The names of the beneficiaries
• Instructions as to how the estate should be distributed to the beneficiaries
• Signature of the testator and the date signed
• Signature of witnesses and the date signed

As mentioned above, this is a will in its most basic form, but in fact most wills will also contain instructions for probate, instructions regarding the payment of debts and taxes, the names of any organizations to receive charitable distributions, a mention of relatives who may purposefully NOT have been named, and more.

Because a will can be so basic, many people believe that a will can easily be created on one’s own, without the help of an estate planning professional; in fact, there are plenty of companies who offer “Do It Yourself” will creation software for a fee. However, it is important to understand that while a will itself can be very simple,  the federal and state tax and probate laws are rarely so.  If you feel your estate is small and your wishes are modest then by all means keep your will short and sweet. However, we strongly urge ALL of our readers (even those with small and simple estates) to have an estate planning professional at least review your will and advise you as to its validity before you sign it and tuck it away.

You can save your executor (and your family) time and money later by organizing your important documents and finances right now.  If you’re not sure where to begin, or what information an executor would need to know, we’ve assembled a list of information and documents an executor might need quick and easy access to if anything were to happen to you:

• Instructions and letter to trustee: Contact information for your attorney and trustee(s), instructions on how to begin the process.
• Minor children: Information about your minor children, nearby guardians or relatives, medical and health insurance information.
• Personal Information: Birth and marriage certificates, passports, family, friends and contact people.
• Estate Planning Documents: Trust, wills, any amendments, personal property distribution memorandum.
• Employment/Business Information: Contact information for supervisors; client information if you are a small business owner.
• Real Estate and Tangible Property: Deed to your home, mortgage information, homeowners and fire insurance, vehicle records, artwork and antiques.
• Bank Accounts and Investments: Account numbers and locations, contact information.
• Monthly Expenses and Bills: A copy of one monthly statement for each.
• Information about recent Taxes
• Retirement Accounts/Government Benefits: Account numbers, beneficiary information.
• Life Insurance: Account numbers, beneficiary information, and copy of each policy
• Memorial and Burial/Cremation: Preferences, pre-paid arrangements, phone numbers.
• Memberships/Secured Accounts/Passwords

Once you are organized, keep your information in an accessible place and make your executor aware of the location. This simple act of organization will not only benefit you right now, it will save your family and your executor much time, money and frustration later on.

What is a Will?

A will is, for many people, the cornerstone of their estate plan. In fact, if you only create one estate planning document (which we don’t recommend) that document is probably a will. A will is the document which details your wishes about how and to whom your property will be distributed upon your death. A will can list your property in great detail, or it can make a statement about “all my legal property” in general. Your will names an executor, the person who will carry out your wishes as detailed in the document. And if you have minor children your will can name guardians, the adults you choose to care for your children in your absence.

What is required to make a Will?

At its heart a will is very simple.  Requirements will differ depending on your state of residence, but there are some basic requirements that will be the same across the board:

• A will must be created by a person who is of legal age, who is proven to be of sound mind and judgment, and who is under no duress.
• A will should revoke all previous wills and codicils.
• A will should be signed and dated.
• A will generally needs the signatures of disinterested witnesses, and in some states must also be notarized.

It is important to note that there is no requirement that a will must be created by or with an attorney; however, homemade wills have been frequently found to be invalid, or have been contested by disgruntled heirs or potential heirs, so having the help and advice of an attorney is highly recommended.

What happens if you don’t have a Will?

If you don’t have a will your property will be distributed according to the intestacy laws of your state. Property will generally be inherited by a spouse, or by a spouse and children.  If there are no spouse or children,  then property will generally go to living parents or siblings, then to nieces, nephews, or other living relatives who can be found. The state will choose an executor for your estate, as well as guardians for any minor children you have. Unfortunately, the people chosen by the state to serve in these roles may not be the people you would have chosen. Additionally, the probate process is likely to be even longer than usual as the extent of your estate, as well as any outside claims to it, are investigated.

Luckily, there is very little reason for anyone to die without a will. Although wills can be designed to be as comprehensive and intricate as you like, they are at heart very simple documents which can provide peace of mind for you and your family. Contact our office—or another attorney you trust—to help guide you through the process of creating your own last will and testament.

Probate is the process by which the court identifies the assets of a person who has died, and facilitates the distribution of those assets  and transfer of title to the persons entitled to them. It sounds like it should be simple, but even in the best of circumstances there are procedures that must be followed to the letter, and the actual process (depending on the size of the estate and the laws of the state in which the property is being probated) can take anywhere from 6 months to a few years.

You may wonder why probate can take so long, especially if the deceased person has left a will making their wishes clear.  A good will can certainly make the process easier, but even with a will, there are certain steps that must be followed to complete the probate process, some of which can be very time consuming.  Some of these steps include:

• The appointment of an executor or personal representative
• Verification of the will
• Taking an inventory of assets belonging to the deceased
• Giving notice to creditors
• Paying valid claims against the estate
• Preparing and paying taxes
• Notifying beneficiaries
• Distributing the assets to the beneficiaries or heirs

If you think that just reading the above paragraph takes your breath away, imagine the confusion of having to actually go through all of those steps—and possibly more!

Whether or not your estate will eventually be subject to a lengthy or expensive probate often depends on a number of factors: the size of your estate, how your assets are held, and how cooperative your next of kin may be. But one way to increase your chances of avoiding probate is to have clear (and clearly valid) estate planning documents which are designed to do just that. This would usually mean a revocable living trust.  If however, your assets are valued at less than $100,000 at your death, then in California there is a simplified procedure to avoid probate even if you do not have a revocable living trust and provided that your designated beneficiaries or heirs cooperate with one another. There are other ways to avoid probate by titling assets in a certain way, but these alternatives are usually only effective in limited circumstances and often create other problems. These include: joint tenancy, Pay On Death (“POD”) and Transfer of Death (“TOD”).

If you are concerned about probate, or would like to know more about how you can protect your assets and help your loved ones avoid a lengthy probate, contact our office—or a qualified estate planning attorney in your home state—to discuss your options.

Your executor is the person who carries out the instructions in your will.  You may spend hours (sometimes months or even years) agonizing over inheritance plans and making decisions; but in the end, when the time comes for all of those decisions to be implemented, you’re not going to be around.  If there are any questions to be answered or clarifications to be made they’re going to fall to your executor.

Your agent is the person who—depending on whether the document is a health care directive or a financial power of attorney—will make your important financial or health care decisions when you are unable. This person is your proxy during your life, signing checks on your behalf or talking to doctors about your treatment.

Considering all of this, it is understandable why so many people have trouble naming an agent or executor.  It’s not easy to choose your own replacement, so to speak.  But the most difficult decisions are often the most important. If you are a parent of more than one child then you know about the sibling fights that can erupt seemingly out of nowhere, even in loving and agreeable families. This is especially true when there is any uncertainty about what mom or dad’s true wishes were.  The right agent or executor can relieve much of that uncertainty.

So how do you choose the right agent or executor?

First of all, think it through carefully.  Choose someone reliable, whose decisions you trust. You’ll want someone who’s careful; and you’ll want to choose someone who isn’t already overloaded, because they’ll need to have time to do a thorough job. Choose someone who knows you and who knows your family; a familiar face will be comforting in hard times.  On the other hand, nominating a financial institution rather than a personal friend can work out well under the right circumstances, but research your choices carefully.

If there isn’t one clear choice you may decide to nominate two people to make decisions together.  This can be a good alternative if the two work well together and share your values, but it can also be a recipe for disaster, so be sure to build in some protections: instead, consider naming an uneven number of agents or executors to prevent tie-decisions, or nominate a mediator or tie-breaker who can step in to prevent serious disagreements from having to be decided in court.   If you wish to include the power to make family gifts, special legal considerations come into play: talk to your attorney about gifting powers if you wish to include them in your documents. They can often be very helpful, especially if you wish to delegate the authority to qualify you for a long term care subsidy under the Medi-Cal program.

It didn’t always used to be this way. The last will and testament of the great Jane Austen, for example, was only one paragraph long:

I Jane Austen of the Parish of Chawton do by this my last will I testament give and bequeath to my dearest sister Cassandra Elizabeth everything of which I may die possessed, or which may be hereafter due to me, subject to the payment of my Funeral expences, & to a Legacy of £50. to my Brother Henry, & £50 to Mde de Bigeon – which I request may be paid as soon as convenient. And I appoint my said dear sister the executrix of this my last will & testament.

Jane Austen

April 27 1817

Although this simplicity may have worked in 1817 England, it isn’t practical in the here and now. Things just aren’t that simple anymore. First of all, although Austen appoints her sister Cassandra as the executrix of her will, the will itself neglects to specify what powers are included in that appointment, leaving Cassandra effectively unable to carry out Austen’s wishes. Secondly, the will neglects to make alternative provisions—what if Cassandra had unexpectedly died before Jane? Also notably lacking (from our contemporary perspective) are any provisions for estate taxes. And finally, discerning readers may notice that the will does not include the signatures of any witnesses, something which would have been required if her will had been type-written.  Likely, it was only because her will was written entirely in her own hand, and her hand-writing was later authenticated by witnesses who authenticated her hand-writing, was the will upheld as valid.  In California, a type-written will must always be signed by at least two witnesses; the only exception  to this requirement is a “holographic” will, which is a will that is completely handwritten by the testator. 

We all may long for simpler times, especially when it comes to something most people think will only benefit their heirs and not themselves; but many of the rules and regulations that are dismissively thought of as “hoops to jump through” are there for your best interest. They exist to protect your heirs and your legacy from fraud, misuse, greed and neglect. Far from being a chore, creating a thoughtful and legally valid will these days is actually an act of love… One might even say it’s a matter of sense and sensibility.

Keeping this in mind, here are 4 things to consider when choosing your executor or personal representative:

1. Your executor should be trustworthy. Your executor will be privy to all of your financial secrets: reviewing estate assets, determining your liabilities and paying off creditors, settling outstanding debts, and making distributions to heirs. Chances are you don’t want all that information spread throughout the family or community.
2. Your executor should be organized. The person you choose will be in charge of a number of detailed tasks, both large and small. He or she will be making lists of assets, working with your attorney to meet court deadlines, making timely distributions for estate taxes, and more. Missing or being late for one of these many steps can draw out the entire process, costing your heirs both time and money.
3. Your executor should be financially savvy. One of the responsibilities of executor is to keep the estate viable (making sure the mortgage and fees continue to be paid) during the probate process. If you have investment accounts you’ll want to ensure they won’t languish and lose their value before they can be distributed to your heirs.
4. Your executor should have heart. Although probate is a can be a difficult and detailed process, it is at its core about the people you love. Your executor should have the ability to be caring and compassionate during this emotional time.

If you don’t know anybody you would trust with all of these responsibilities don’t lose faith, there are other options. For example, you can choose a bank or financial institution as your executor, or you can ask your estate planning attorney to recommend a professional fiduciary.  The goal is to find someone who will serve you well and work with your attorney to ensure a smooth probate for all involved. Another approach is to create and fund a trust, where the duties after your demise would be handled by your Successor Trustee.  However, many of the same concerns that apply to your Executor (if you only have a Will) also apply to your Trustee.  Talk to your attorney about choices and the difference between administering a probate estate created by a Last Will and Testament, on the one hand,  versus a trust estate created by a Trust, on the other.  You may find the talk very helpful.

Probate: [from the Middle-English probat, from Latin probatum…] a : the action or process of proving before a competent judicial authority that a document offered for official recognition and registration as the last will and testament of a deceased person is genuine. b : the judicial determination of the validity of a will.

This Merriam-Webster definition of probate doesn’t make it sound so bad. Quite simply, it is the process by which the court determines the legal property of a person who has died, and decides to whom those assets will be distributed. It sounds like it should be simple… but somehow probate is hardly ever simple. Even in the best of circumstances there are procedures that must be followed to the letter, and the actual process (depending on the size of the estate and the laws of the state in which the property is being probated) can take anywhere from 6 months to a few years!

A good will can go a long way toward keeping the probate process on the short and easy end of the spectrum; but even with a will, much of your probate experience will depend on elements outside your realm of control. There are certain steps that must be followed to complete the probate process, including:

• the appointment of an executor or personal representative
• verification of the will
• taking an inventory of assets belonging to the deceased (which can be very difficult if good records have not been kept)
• giving notice to creditors
• paying valid claims against the estate
• preparing and paying taxes
• notifying beneficiaries (not all of whom will be easy to find)
• and eventually distributing the assets to the beneficiaries or heirs

If just reading the above takes your breath away, imagine having to actually go through all of those steps—and possibly more! The good news is that you don’t have to go through it alone, our office can help you navigate the tangled probate maze from beginning to end—from filing the first court documents to protecting your eventual inheritance—ensuring that your probate experience goes as quickly and smoothly as possible.

A Will: A will is a formal declaration of your wishes. It is a document you create to declare the extent of your privately held property (it does not cover jointly owned property) and what your wishes are for the distribution of that property. You name an executor to carry out your wishes, and you can even include a nomination of guardian for young children in your will. A will does not go into effect until after you die; before then it is simply a piece of paper containing your private wishes. However, once you have passed away your will no longer remains private, it now becomes a matter of public record, available to anybody who would like to view it, and overseen by the court in a sometimes lengthy and expensive process called probate.

A Trust: A trust is a far more extensive tool than a will. In fact, there are many different kinds of trusts, each of which may be used for specific situations. Most trusts created for estate planning purposes are revocable living trusts (or RLTs.) An RLT is a document created not simply to distribute your property, but to own your property on your behalf, to be invested and spent for your benefit or the benefit of your named beneficiaries. As such, a trust takes effect as soon as you sign it and your property is protected by and subjected to the trust parameters as soon as you place them in the name of your trust. There is a lot of flexibility available with a trust, and yours can be created to fit your unique situation. Most RLTs name the trust creators as the initial trustees, nominating individuals or banks to take over as trustee when the creator becomes incapacitated or passes away. The benefit of a trust is that when the creator passes away, property is not merely distributed and that’s the end of it; the creator can instruct the trustee to distribute the money slowly and in any number of ways, even to the extent of creating new trusts for each beneficiary. Trusts can last for generations, as evidenced by the enduring Kennedy trusts.

Wills and trusts are necessary tools in estate planning, each one working in unique situations. Your attorney will be able to tell you which one is best for your family.

Has your will or trust been reviewed or updated in the past 3-5 years?

If you answered yes to these questions then you are two steps ahead of 2/3 of the rest of Americans. But the next question is the big one:

Does your family or executor know where your legal documents are stored, and are they able to access them?

Having a will or a trust is essential, but it doesn’t do any good if nobody can find it after you’re gone. Olympic medalist Florence Griffith Joyner (“Flo-Jo”) supposedly had a will when she tragically passed away at the age of 38, but because her husband was never able to locate the original document, a neutral administrator had to be appointed by the court to execute the estate; and whether her estate was executed according to her wishes is anybody’s guess.

A will or a trust often contains sensitive and emotional information, and for that reason many people (understandably) want to keep these documents private; but spending any amount of time or money on your estate planning documents won’t help your family if they can’t locate—or don’t have access to—those documents after your death.

We suggest having an earnest conversation with your family (or one or two select members at the very least) about the existence and location of your personal documents. Although they don’t have to know what is in your will or trust, knowing where those documents are can ensure that the time and money you spent creating them isn’t wasted.

“Nov. 29, 1895. I give to my cousin, Nettie M. Cowan, all money that I have in the Bowery Savings Bank.
Aletta Stager, 131 Berkeley Place, Brooklyn, N.Y.”

Of course, things have changed in the probate and estate planning world in the one hundred plus years since Ms. Stager executed her will. A glaring omission from the two lines above is the nomination of an executor. If you don’t nominate an executor in your will the court  may choose one for you. Also, even if you have only one person in mind as your beneficiary, you’ll want to include secondary beneficiaries, who can include charities and non-profits if you don’t have any family or friends to whom you’d like to leave your estate.

Even back in 1895 Aletta Stager’s property ended up going to the state of New York when no heirs—including the named beneficiary—could be found. Perhaps if Ms. Stager had included a couple more lines in her will her estate could have gone to benefit her favorite charity instead of being swallowed up by the state.

When a will, or a Trust,  is contested by an angry beneficiary (or someone who thought they should have been a beneficiary), the core motivation is often more about emotion than finances. Unfortunately, however, a will contest (if the contest is deemed valid)—and the ensuing litigation process—will delay probate considerably and make it significantly more expensive.

For this reason, if you are named as the executor of a will, it is important to know what the legitimate grounds for will contests are, and to have a trusted attorney to whom you can turn if and when surprises occur. Serving as executor of a will can be stressful enough when everything goes as planned; dealing with the unexpected—especially when those surprises come from hurt or angry relatives—can take over every part of your life and have a lasting effect on family dynamics.  A trust may also be contested, on most of the same grounds. 

We hope you will never have to deal with a will contest in your family; but if you do, we hope you will let our firm help you make the process as fair and as painless as possible.