Let’s talk about what goes in a will.

You can’t take it with you, so before you go, you may want to protect your family by deciding how your property will be given to your descendants. Putting your wishes on paper will give you peace of mind, avoid hassles and arguments within the family, and save your family time and money.

A will is an important document that allows you to keep control of your property while deciding how it will be used to take care of your loved ones. It will make sure all of your possessions will end up with the right family members or other people you designate.

The laws governing a will vary among the different states, but some of these general guidelines can help you plan your will and get the ball rolling. You will want to consult an attorney or estate planner to make sure your will is valid and therefore your family is taken care of.

What goes in a will as legal document

A will is simply a legal document in which you state what property will be distributed and to whom. It names a manager or executor who will manage your estate after you die. And it names whoever you wish to become the guardian of any minor children or dependents you may have.

The property listed in your will doesn’t have to be just the large items like homes and vehicles. It can also include personal or sentimental items like photographs and family items like silver or china.

You can be very specific about items and who they will go to. Aunt Sally gets the china. Cousin Frank gets the tools. Uncle Henry gets your favorite painting. Each person who is designated to receive some property is called a “beneficiary.”

There are some properties that are generally not covered by wills. These are insurance policies and retirement accounts that already list the beneficiaries you specified when you took out those policies.

You should periodically review those policies to see if anything has changed relative to the beneficiaries you have chosen. Keeping them up to date is important because they are the legal documents which will dictate who receives the benefits of your policies in the event of your passing.

Deciding on what property to list

Once you decide what policies, etc. already have beneficiaries identified, you can turn your attention to the other properties or assets you own.

You should be as specific and descriptive as possible when listing the assets or properties you wish to give to a beneficiary. If it is a vehicle, you should mention at least the make and model of the vehicle along with the year it was made. You want the court in general and your executor, in particular, to know exactly what you are talking about with each item.

Your will can cover your finances like cash on hand, bank accounts or stock holdings. It can cover family heirlooms like jewelry or works of art.

“Real property” is a term that refers to buildings, homes, or other forms of real estate, etc. Transferring real property can be a little more involved, so it’s a good idea to consult with a knowledgeable attorney when doing so.

Considering beneficiaries

In most cases, it is clear who will be given what, especially within the family. It is a little involved if you are considering leaving your spouse or children out of your will. In these cases, there is something called “Inheritance Rights” that you should check out with an attorney to make sure your wishes will be valid.

There is an extra step you may want to consider when naming beneficiaries. And that would be to name secondary beneficiaries, also called alternates or contingent beneficiaries, just in case your first choices do not survive you. Quite often, the first beneficiary is the spouse, and second beneficiaries are the children.

Selecting an executor

Every will has an executor.

That is the person designated to carry out the terms of the will. When selecting an executor, you should choose someone who is responsible and possibly familiar with your family and situation (although that is not necessary).

You should also make sure that whoever you choose is aware of being chosen for this responsibility and is agreeing to serve in this capacity. You don’t want the person selected to be suddenly surprised.

Choosing a guardian for your children

Parents with children under the age of eighteen are most concerned about their welfare in the event of the parents’ deaths.  They want to make sure their children are cared for in the best manner possible, and they can do this by naming a guardian.

If parents do not have a will and pass away before their children become legal adults, the courts will decide who gets responsibility for raising their children.

Often, that decision means that the children will be raised by the spouse if still alive or possibly a sibling or other close relative. If you know who you want to raise your children, it is best to specify them as guardians in your will.

You can also leave property to your children or to young adults. In this case, you can designate an adult to manage this property as a property guardian or custodian. In this way, you can protect your child’s inheritance.

Making and signing the will

Once the document is created, you will need two witnesses who will attest to your identity as the person who signs the will. You sign and date the will in their presence. These witnesses should not be beneficiaries; otherwise, there might be conflicts of interest.

You can also use a companion document called a “self-proving affidavit.” This is a document that makes it easier for your will to go through probate court after your death. If you use this document, you should have it notarized.

Remember to tell your executor where your will is and how to access it in the event of your passing. Store the will in a safe place. Some people use home safes or safe deposit boxes or leave the Will with a family or town attorney or another attorney they select.

It can be somewhat disconcerting to think about passing on from this life and worrying about what happens to your estate and your heirs. So you may not have considered things like a will or trust. But at some point, you probably should.

A will and/or trust will make sure that your estate and sentimental valuables will go to the people you want after your passing.

The first thing to know is the difference between a will and trust. A will is a written legal document that allows you to distribute your property to whomever you want upon your death.

You can choose the beneficiaries of your property, identify someone who will execute your wishes, and be assured that the courts will supervise your executor in following those wishes.

When you write a will, it becomes an official document and it is final and cannot be changed unless you change it. Nothing else needs to be done. It defines what will be done during the management of your estate when you have passed away.

A trust, on the other hand, is a document that governs how to manage your estate while you are still alive. So it is an alternative to a will. It is also a different way to distribute your property when you have passed away.

With a trust, you appoint a trustee to manage your estate. That can be yourself or someone you appoint who will manage it in case you can no longer do it yourself.

A trust has some advantages over a will in that it is not subject to probate proceedings, and no court supervision is necessary. All challenges or disputes are handled by your appointed trustee.

You continue to manage your estate for as long as you want and are able (of “sound mind”). Your trustee will take over when needed.

Trusts cost more than wills because they are ongoing and subject to change at any time according to your wishes. You can transfer your various assets into your trust at any time during your life. You can even stipulate that on your death, all remaining assets be transferred into your trust. This will prevent them from being subject to probate.

Create an estate plan

Start by deciding what your estate planning goals should be. What do you want to happen and who do you want to give your assets to? Who should manage your estate and affairs?

You should create an estate plan by making a comprehensive list of all your assets including bank accounts, property, investments, vehicles, jewelry, furniture and digital items.

A comprehensive estate plan includes everything you own and everything you owe – your debts. Even if you don’t own a house, whatever you do own is your estate.

The estate plan names who will get your properties after you die and who will be your executor. It names guardians for your minor children. It names health care and financial individuals who will have power of attorney for you in those areas.

Create a last will and testament

The last will and testament is the official document that reflects your estate plan. It lists the distribution of properties on your death, the guardians of your children, and the individuals who will have power of attorney for healthcare and financial decisions.

Things to know:

Before creating a will, you may want to check out the rules in your state for what happens if you do not have a will. These are called “rules of intestate succession.” Knowing these rules can help you create a valid will and an attorney can help you understand them better.

All of the properties in your estate may not be covered in your will. The reason is that retirement accounts, life insurance policies, joint tenant situations, and possibly other financial accounts may have their own designated beneficiary forms. Those beneficiaries have rights to those assets regardless of what your will says.

So when you make your last will and testament, you should also make whatever changes you need on specific beneficiary forms to coincide with your wishes.

Although it is not binding on the courts, you should name a guardian for your children in case both parents are deceased. The court is not bound to agree with you, but if your wishes are known, it is unlikely they will not be followed.

Revocable trust

A living trust might be a better alternative than a will. The living trust (also called a revocable trust) will enable your properties to pass on to your heirs without the need for the courts to be involved. It also keeps the information on your assets private.

A living trust offers a high degree of control over your assets and provides tax protection. You serve as the trustee until your death, when someone else will become a trustee.

There is another form of trust, the irrevocable trust. It provides more tax benefits but cannot be changed after it is put in place.

Creating wills and trusts can be daunting if you try to do this yourself. There are many complex situations you may not know how to handle. These include families with non-U.S. children, disabled individuals, non-married relationships, stepchildren, and many more unique situations. Having a lawyer involved would be a good idea in such cases.

The living will

The living will is not really a will but a legal document also called “advance directive” or “advance health care directive” that provides guidance to your loved ones on your medical treatment at the end of life.

The living will does not take the place of a will and testament or trust and has no use after death. It is used in final days before death. It covers such items as whether to be put on or taken off life support, whether to donate organs, when to administer CPR and whether to use a DNR (Do Not Resuscitate) order.

The living will document is easy to create using a Living Will Form.

Power of attorney

There are several types of power of attorney, so it’s important you understand the differences during your estate planning.

A healthcare power of attorney is a legal document that allows someone you select to make health decisions on your behalf. It makes sure you die with dignity and without pain. The document is also called a Healthcare Proxy. It is often used along with a Living Will, and in some states can be combined into one document.

A financial power of attorney is a document that enables someone you choose to make financial decisions for you – for example, when you may become ill or unable to make those decisions yourself. This can avoid problems in possibly losing your home or car or negatively affecting your credit rating.

The power of attorney does not have to be relative and can be anyone you decide. You can also change your mind and rescind the power of attorney any time by signing a new form and having it notarized.

While some of the forms needed for creating documents for wills and trusts are simple to fill out, others require more thought and planning. It’s a good idea to have a lawyer by your side when taking these important steps.

We don’t like to think about the possibility of being in a critical accident or developing an incapacitating disease. Most of us won’t have to deal with those issues – but some will. And when that happens, someone will have to manage your finances and, in some cases, decisions surrounding your health care. To cover those cases, you can use a “power of attorney.” That’s a legal document that gives another person the ability to act on your behalf for some or all of your legal, financial, and health issues.

What A Power of Attorney Does

When you sign a power of attorney, you give another person the right to make some or all legal decisions on your behalf. You’re the “principal” and the person you assign as your power of attorney is called the “agent” or “attorney-in-fact.”

There are two main types of power of attorney: specific and general. A specific power of attorney gives your agent the power to handle a specific task – selling your home, for example, or managing your finances. A general power of attorney gives your agent the power to make any legal decisions or perform any legal acts on your behalf.

In addition to being general or specific, a power of attorney may be durable or non-durable. A durable power of attorney means your agent can continue to make decisions on your behalf even if you’re incapacitated or mentally incompetent. A non-durable power of attorney ends when you become incapacitated or mentally incompetent.

Many people choose to split their affairs among different powers of attorney. For example, it’s common to set up one power of attorney for your health care decisions and a separate one for your finances. You may not want your financial power of attorney to have access to all of your personal medical information, or you may want to choose two people that have some experience in those different areas.

Your Rights

You put a lot of trust in your power of attorney – your health and your finances (and potentially your family’s financial security) are in their hands. And with control of your health and finances, your agent is in a position to take advantage of you. So, the laws surrounding powers of attorney are very strict.

Your agent legally owes you a “fiduciary duty.” That’s a legal term that means they have to put your interests before their own. Generally, they have to make the decisions that you would have made if you were able. They can’t make decisions that benefit themselves and hurt you. They also can’t make decisions that go against the goals and expectations you set out in the power of attorney. That’s considered abuse of the power of attorney and is illegal.

In addition to abusing their power as a legitimate agent, some people will convince elderly or sick relatives or friends to give them power of attorney. They may then use that power to give themselves money or assets, despite the wishes of the principal. This is also an abuse of the power of attorney.

When someone abuses their power of attorney, the principal or their family can sue the agent to recover the money or property lost due to the abuse. In some cases, there may also be criminal charges for fraud, exploitation, theft, and more.

Choosing A Power of Attorney

Your agent has a lot of power, so you need to think carefully about who will best serve your needs. Many people choose their parents, siblings, or children. Some also choose close friends. Some choose their accountants to manage their finances. Whoever you choose, make sure they’re someone you truly trust. Sit down with them and explain that you’re giving them power of attorney and make sure they understand the expectations that come with that role. You don’t want it to come as surprise!

Creating A Power of Attorney

In order to create a power of attorney, you must be legally capable of entering a contract. In general, that means you have to be at least 18 and mentally competent. A power of attorney must be set down in writing and either a notary public or two adults have to witness and sign the contract.

As we mentioned above, you can choose whether your power of attorney will be specific or general and durable or non-durable. In addition, you can limit your power of attorney to specific roles or set guidelines for what they can and can’t do.

You can modify your power of attorney as long as you’re still legally capable of entering a contract. You can also put terms into the power of attorney contract that will trigger or allow for modifications. For example, you may put in a clause that says you want your financial power of attorney to turn over your assets to your children when they turn 18. If you’re mentally incompetent or incapacitated, the court may modify or revoke your power of attorney in order to uphold your wishes.

There are a number of websites and services that can help you create a basic power of attorney. Depending on your health and financial situation, that may be adequate for your needs. However, an experienced estate planning attorney can help you make sure you and your family are covered by your power of attorney. They can help you make your wishes and expectations clear and set up provisions to deal with unexpected circumstances.

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Dealing with the death of a loved one is hard enough and the complications of inheritance and asset distribution can put a serious toll on family and friends. The process can seem confusing and complicated, especially when you’re grieving. So how does the whole thing work? How do we deal with wills (or estates without wills)? The answer lies in the California probate code.

What Is The California Probate Code?

The California probate code is the set of laws that determines how property is distributed and otherwise managed after the owner’s death. It sets out the procedures for executing a will or handling assets in the event that there is no will. The code allows for a couple of different options when dealing with an estate depending on the will, the value of the estate, and the type of property in the estate.

The Simplified Process

If the deceased left a will and the estate is worth less than $150,000, there is a simplified procedure for handling the asset handover. The people named in the will simply need to wait for 40 days after the death and then file an affidavit with the court and the property will be transferred. Under the California probate code, the value of the estate includes real and personal property and any life insurance or retirement benefits that will be paid to the estate. It does not include property held in trust, cars, boats, property that passed directly to the spouse of the deceased, and certain other assets. Cal. Prob. § 13050-13054.

While a will is generally enforced as written, there may be certain exceptions because California is a communal property state. If you’re married, your spouse is entitled to half of all the assets acquired during the marriage and half of any assets acquired prior to the marriage that were shared with the spouse. That’s true even if you have a will and leave your spouse out of it.

If there’s no will and the estate is worth less than $150,000, the California probate code determines who is entitled to the property. For example, if you’re married and have no children then your spouse gets everything. If you have no spouse or children, your parents and/or siblings will inherit. If you have a spouse and children, a spouse and parents, or a spouse and children, the property will be divided between them. If you have no immediate family, property will go to more removed relatives of you and your spouse. If the state can’t find any family members to inherit, then your property will go to the state.

Probate Court

Estates worth more than $150,000 will have to go through the probate court. That means filing a Petition for Probate in order to open a case; that form offers several different options and you’ll likely need to speak to an attorney to determine which one is appropriate in your case. If there is a will, whoever has the original copy must deliver it to the probate court within 30 days of the death – if it’s late, he or she may be sued for damages associated with the delay. They also need to send a copy to the executor of the will (the person the deceased chose to handle the administration of the estate). If there is no will, then the court will appoint an administrator (usually a spouse or close relative) to manage the process.

Once the case is filed, the court will schedule a hearing date. Everyone that may have a right to inherit (including family members that aren’t named in the will) must be notified of the hearing. The executor or administrator will then gather up the assets and file an inventory with the court and the court will decide how the assets are distributed. As we mentioned above, they’ll generally follow the will if there is one (barring certain exceptions) and otherwise will follow the California probate code’s guide for “intestate” succession for estates without a will.

Once the court signs off on the distribution of assets, the executor or administrator will actually handle the distribution and file a report with the court showing that it was done according to their orders. Then the case will be closed.

Managing Estates In Practice

Even on paper, the process seems somewhat complex. In the real world, where estates have debts and strange assets and family members and friends that want specific items and are willing to fight for them, the probate process can get messy very quickly. The best thing you can do for your estate is to meet with an experienced estate management attorney and make sure your affairs are in order. If you’re dealing with a family member’s estate, an attorney can help you make sure the process is handled fairly and legally.

The whole inheritance issue can be thorny, but it has to be dealt with. Be informed and proactive to make it as smooth as possible for yourself and your family.