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San Francisco Wills and Trusts

A will is a legal document, drafted and executed in accordance with state law, which becomes irrevocable at your death. In your will, you can name:

YOUR BENEFICIARIES: These are family members, friends, or charitable organizations who will receive your assets as you direct. You may provide for specific gifts of such items as jewelry or a specific sum of money to named beneficiaries. You should also provide for the distribution of the "residue" of your estate -- that is, your remaining assets (which do not need to be specified) which are not specifically given to individuals or organizations in your will.

A GUARDIAN FOR YOUR MINOR CHILDREN: You may nominate a person who will have the responsibility to care for a child of yours if you and your spouse die before the child attains 18 years of age. You may also name a guardian -- who may or may not be the same person -- to be responsible for management of assets given to a minor child, until the child attains 18 years of age.

AN EXECUTOR: This person or institution of your choice, named in your will and appointed by the probate court, collects and manages your assets, pays your debts and expenses and any taxes that might be due, and then, in a manner approved by the court, distributes your assets to your beneficiaries in accordance with the provisions of your will. Your executor plays a very important role with significant responsibilities. It can be a time-consuming job. You should choose your executor carefully. A will is a part of your "estate plan."

If you do not know a lawyer who is qualified to discuss your assets and your estate plan with you and to write a will for you, obtain referrals from someone whose judgment you can trust - friends, associates or your employer. Your local bar association maintains a list of State Bar certified lawyer referral services in your area.

Some lawyers who work in the estate planning area are "certified specialists in estate planning, trust and probate law." This designation means that they have met standards for certification set by the State Bar of California. However, not all lawyers who have experience and expertise in estate planning have sought that certification.

When you retain a lawyer, you should understand what services are to be provided and how much they will cost. California law requires that a lawyer explain, in writing, the nature of the services to be rendered, the cost of those services and the payment terms. You should indicate your understanding of the terms and conditions of the lawyer's employment with a fee agreement prepared by your lawyer.

The cost of preparing a will depends upon the complexity of the documentation and planning required. Costs may vary from lawyer to lawyer. You may belong to a "legal insurance plan" that covers the kind of services you need. If your income is very low, you may qualify for free or low-cost legal help. Check the white pages of your telephone directory for a legal aid society in your county. You may also contact your county bar association to see if lawyer referral services offer free legal advice for low-income people or if the bar association can direct you to a no-cost legal services organization.

A HANDWRITTEN OR HOLOGRAPHIC WILL: This will must be completely in your own handwriting. You must date and sign the will. Your handwriting has to be legible, and the will must clearly state what you are leaving and to whom. A handwritten will does not have to be notarized or witnessed. Even so, having the will signed by two witnesses is a good idea. It is also a good idea to retain a qualified lawyer to check the will to be sure that it conforms with California law and is clear with respect to your intentions and directions.

A STATUTORY WILL: California law provides for a "fill-in-the-blanks" will form. The will form is designed for single, married and divorced people with relatively small estates. If there is anything you do not understand or if you are making any provisions which are complicated or unusual, you should ask a qualified lawyer to advise you.

A WILL PREPARED BY A LAWYER: A qualified estate planning lawyer can provide you with the assurance that your will is prepared in accordance with California law. The lawyer can also offer suggestions and help you understand the many ways that property can be transferred to or for the benefit of your beneficiaries. A lawyer can also help you develop a complete estate plan and offer alternative plans which may save taxes. This kind of planning can be extremely helpful and economical in the long run for you and your beneficiaries. Your lawyer will either personally supervise the signing of your will or will provide you with detailed instructions concerning the rules for its execution by you and two witnesses who are not beneficiaries of your estate.

A TESTAMENTARY TRUST WILL: A will that sets up one or more trusts for some of your estate assets to go to after you die.

A POUROVER WILL: A will that leaves some of your assets in a trust that you had already established before your death.

No matter what kind of will you use, the will should be solely your will and not a "joint will" with your spouse or any other person.

You should review your will periodically because, if it's not up to date when you die, your estate may not be distributed the way you wish.

Your will can be changed through a "codicil," which is a legal document which must be drafted and executed in accordance with the same state laws which apply to wills. A "codicil" is simply an amendment to your will. Your will must not be changed by crossing out words or sentences or making any notes or written corrections on it. You should seek the advice of a lawyer and make a new will when you marry or divorce. You should also review your will when there are any major changes in your family (such as births or deaths), when the value of your assets significantly increases or decreases, and when it is no longer appropriate for the persons named as guardian or executor or testamentary trustee to act in that capacity.

If you have moved to California from another state and have a will which is valid under the laws of that state. California will honor its validity. It is important for you to review your will with a qualified California lawyer, however, since California law will govern the probate of your will if you reside here at your death. If you move to another state, your California will should be reviewed by another lawyer there.

No. Generally speaking, your will affects only those assets which are in your name alone at your death. Some assets which are not affected by your will include:

LIFE INSURANCE: The cash proceeds from an insurance policy on your life are paid to whomever you have designated as beneficiary of the policy in a form filed with the insurance company -- no matter who the beneficiaries under your will may be.

RETIREMENT PLANS: Assets held in retirement plans, such as a 401 (k) or an IRA, are transferred to whomever you have named as beneficiary in the plan documents.

ASSETS OWNED AS A JOINT TENANT: Assets such as real estate, automobiles, bank accounts and other property held in joint tenancy will pass to the surviving joint tenant upon your death, not in accordance with any directions in your will.

"TRANSFER ON DEATH" OR "PAY ON DEATH": Some bank accounts and security accounts may be held with a beneficiary designation such as "transfer on death" ("TOD"). Other assets, such as U.S. savings bonds, may be held in a form directing those assets to be "paid on death" ("POD") to a named beneficiary. These assets will pass pursuant to those directions, and not pursuant to your will.

LIVING TRUSTS: Assets held in a revocable living trust at your death are distributed pursuant to the provisions of that trust document. A living trust allows for the management of your assets during your lifetime and the transfer of those assets pursuant to the terms of the trust without a court-supervised probate proceeding....

YOUR SPOUSE'S HALF OF COMMUNITY PROPERTY: In California, any assets acquired by you and your spouse from earnings during your marriage are community property. You and your spouse own equal shares of those assets. Your will, therefore, affects only your half of the community property, not your spouse's. Assets that either spouse owned at the date of the marriage, together with gifts and inheritances given to just one spouse during the marriage, are that spouse's separate property. Your will affects all of your separate property held in your name alone.

Even if your entire estate consists of property held in joint tenancy, a life insurance policy and a retirement plan, you should still consider making a will. If the other joint tenant dies before you do, then the property held in joint tenancy will be in your name alone and subject to your will. If named beneficiaries die before you do, the assets subject to a beneficiary designation may be payable to your estate. You may unexpectedly be entitled to a bonus, a prize, a refund, or may receive an unexpected inheritance which would then be subject to your will as well. If you have minor children, the nomination of a guardian of their person and estate is a very important reason for making a will.