Probate / Wills – FAQ

Here are some basics on Wills (California Probate Code Section 6240) – along with answers to frequently asked questions:

1.  What happens if I die without a Will?  Your “estate” (the assets that you own in your name) may be distributed to people not of your choice.  The laws of intestate succession will determine who will receive your assets.  This will include your spouse, domestic partner, children or other relatives.

2.  What can a Will do for me?  Your Will states who will receive your assets when you die.  You may also nominate an “executor” who will appear before the court, gather your assets, pay your debts and taxes, and distribute your assets in accordance with your stated desires.  Your Will can also state the names of the person(s) whom you would want to care for your children (“guardian”) and to provide for their financial welfare (“custodian”).

3.  Does a Will avoid probate?  Generally, no.  If you die owning assets that are titled in your name only (for example, real estate), then the court will need to determine if your Will is valid and then order that title be transferred out of your name and into the name of the person(s) that your Will designates.

4.  What is community property and can I give away my share in my Will?  Community property is money (and property bought with it) that you and your spouse earned while you were married.  Your Will can designate who will receive your one-half of the community property, but you cannot give away your spouse’s one-half interest.

5.  Does a Will give away all of my assets?  Not necessarily.  For example, if you own a bank account and someone else’s name is also on that account, then that person will automatically own the balance upon your death.  Similarly, if you own a house with your spouse as joint tenants, then s/he will automatically receive your one-half interest.  Life insurance policies and retirement plan benefits may automatically be distributed to the named beneficiaries without the need for a Will.

6.  Are there different kinds of Wills?  Yes.  There are handwritten Wills, attorney drafted Wills, typewritten Wills, and statutory Wills.  Either are valid, provided they comply with the California Probate Code requirements.

7.  May I add or cross out any words in my Will?  You should not.  If you do, the court might find the Will to be invalid or may disregard the changes that you informally made.

8.  May I change my Will?  Yes.  Your Will is not “etched in stone” until you die.  Until then, you can make any changes (called a “codicil”) you desire.

9.  When should I change my Will?  You should make (or consider changes) if you marry, divorce, or terminate a domestic partnership.  If you have more children or the value of your estate increases, you should certainly consider making changes to your existing Will.

10.  Should I require a “bond” ?  A bond is a type of insurance policy that will reimburse your estate if your executor mismanages or steals your assets.  A bond is paid for from your estate’s assets.  Make sure that the person you name as your “executor” is trustworthy.

For other issues involving Wills, go to the home page and read additional information about that topic.