Every estate plan should have a Will as one of its components. Wills, however, can come in several varieties and have different requirements depending on which one you select.

Formal Witnessed Wills

A formal Will is usually produced on a word processor or other text editor. It has to be signed by you (the creator of the Will, also known as "Testator") and be witnessed by 2 witnesses. Best practice is to also include the date the Will was signed on the Will itself.

California Statutory Will

If you have a very simple situation, very little in the way of assets,  or an immediate need (e.g., before you travel) it may make sense for you to utilize the California Statutory Will.  This Will is essentially a form created with the Probate code of the State of California. (See California Probate Code Sections 6200-6243).

Holographic Will

A holographic Will is one that is completely hand-written by the Testator. It must be completely handwritten by the Testator but it does not require witnesses.  

Ancillary Provisions in the Will

The Will should also designate someone to act as your "Executor"--he or she will be the person in charge of making sure that your wishes are carried out. The Will is also where you may appoint a guardian for any minor children that you have.  Finally, you may have a "power of appointment" that another person granted you, which may require you to exercise that power in your Will by including a provision in it. 

Pour-Over Will

Wills that are created in conjunction with revocable living trusts are often referred to as "pour-over Wills". The reason is that the primary function of the Will is to "pour-over" the assets into the revocable living trust that you created after you die. In this context, the Will is essentially a back-up document in case you forgot to properly re-title certain assets in the name of your trust. As mentioned in prior posts, avoiding probate is a major goal for most clients, and in most counties, Los Angeles included, the probate process can often take over a year to complete.

Even though you have an estate plan in place, you might still wonder what your family is going to have to do after you pass away. It's an important question and something that your family should be aware of since they (or someone else close to you) will most likely be the ones who will be carrying out the wishes that you've specified in your estate planning documents. The sequence of events that happen after you pass away turn primarily on the type of estate planning device that you've utilized.

Frozen In Time

As a general matter, your Will and/or Trust will be irrevocable (meaning that they cannot be altered) after you pass away. If you only have a Will and you have a large enough estate, your Will will need to be probated. Your Will will be probated in the county where you were living at the time of your death (usually). If you have real estate outside of California, then your Executor may need to initiate an ancillary probate in those other states.

Trusts

If you established a Revocable Living Trust as your primary estate planning device, then after your death, your Trustee will handle the administration of the trust without court supervision or probate. The courts are available to settle any issues that your trustee or your beneficiaries may have, but otherwise, there's no need for court supervision. If you were married or in a registered domestic partnership at the time of your death and your trust holds community property, usually only your half of the community property and separate property will be affected, and the provisions of your trust that affect your property will become irrevocable and unamendable. (Your spouse or registered domestic partner's half will still be totally within his or her control.)

Probate Anyway?

Even though one of the main goals of establishing a trust is to avoid probate, there might be a few situations where a probate proceeding may be initiated. There are additional expenses in beginning the probate process, but it could make sense in the following contexts:

1. The Executor might want to establish that your Will was valid.
2. It may be necessary to nominate the Guardian(s) that you've named in your Will to care for any minor children that you may have.
3. Probating your Will can shorten the creditor's claim period from 1 year to 4 months.

Although it is not always advisable to divulge the specific contents of your estate planning documents to your family members, it can be a good idea to loop them in to the process so that they know what to do if you suddenly passed away. 

Without proper estate planning, your eventual incapacity or death can result in a number of expenses and possible taxes that could otherwise be minimized. Here's a rundown of some of the common ones that come up:

Probate

One of the primary reasons that California residents create an estate plan is to avoid the time and expense of probate. Often through a simple vehicle such as a revocable living trust, you can develop a uniform plan that can eliminate the cost, publicity, time, and intrusiveness of a probate proceeding.

Real Property Taxes

California residents enjoy the benefit of "Proposition 58" which is a law that relates to transfers of real property from parent(s) to child(ren). Under this law parents are able to transfer their personal residence and up to $1,000,000 in assessed real property (during life or at death) to their children without having the transferred real estate be reassessed for real property tax purposes. In simple terms, children are able to pay the same low property taxes that their parents paid. Without proper planning, however, parents may be unwittingly giving up this benefit.

Estate Taxes

As of the date of this writing, the estate tax exemption amount (in simple terms, the amount of assets you can transfer to others without incurring estate tax) is just north of $11 million dollars. As a result, few people currently face this issue. However, this exemption amount is scheduled to go back down to approximately $5.5 million on January 1, 2026, which could bring many more people into taxable territory. Certain estate planning techniques can be used to defer the payment of estate taxes.

Income Taxes

Where appropriate, a competent estate planning lawyer will undoubtedly explain possible income tax consequences as well. For example, use of retirement assets to fund charitable gifts or an explanation of the "cost-basis" adjustment of your assets at the time of death, are both important considerations that you should know about. In addition, some types of trust structures may require ongoing income tax filings (and the expenses associated with tax preparation) that you should know about.

Generation Skipping Transfer Tax

A different type of tax exists for special types of transfers that "skip" a generation. For clients with large estates (generally those that will face estate tax) this is often an important topic to visit.

Legal Fees

Although not a "tax" in the traditional sense, it bears noting that when an individual dies without an estate plan, it can often throw families into disarray and cause them to engage a lawyer who then must sift through all of the decedent's information to figure out who gets what and what types of liabilities existed. Proper estate planning can allow families to minimize the legal process after your death since there will be a set of instructions on how exactly your estate is to be managed and/or distributed. Moreover, if you've worked with a lawyer, he or she most likely has a sense for the types of assets that you own and can often be a guide in the post-death administration process.

Many people fear the cost of establishing an estate plan, but when faced with the multitude of possible expenses of not having an estate plan, generally, the question is "can you afford not to have an estate plan?"

Who Gets Your Assets if You Die Without an Estate Plan?

Whether you like it or not, everybody in California needs an estate plan. If you've failed to prepare actual estate planning documents, then it means that you are relying on the body of California law to dictate who will receive your property. Here's an overview of how some of your assets will get distributed:

1. Joint Tenancy assets automatically pass to the other joint tenants when you pass away.
2. Community property with right of survivorship is a special way of owning assets available to married couples and registered domestic partners. When one of the spouses or partners passes away, the other one automatically becomes the owner.
3. Assets with beneficiary designations automatically go to the beneficiaries that you've named on those accounts. A couple of common examples include life insurance and retirement accounts.
4. Assets held in a trust get distributed based on the terms of the trust document.

Intestate Succession?

If you die owning assets that are not subject to immediate transfer when you pass away and you have no Will in place, those assets are distributed according to the laws of "intestate succession." Under this statutory framework, these assets get distributed to your "heirs" (this is the legal term for people who would inherit from you if you had no Will and is generally comprised of your closest family members).

Probate

With a few exceptions, assets that are subject to the laws of intestate succession generally have to be "probated." Probate is a court-supervised process to make sure that your debts are paid off and your assets get distributed to your heirs. It can be a very expensive and time consuming proposition. For many Californians, avoiding the arduous process of probate is their primary goal in preparing an estate plan.