Estate Planning with a Will

A Will - also known as a "Last Will and Testament" - is a basic and traditional estate planning tool.

Every person who has property or children should have a will. When a person dies without a will, their property - unless it has otherwise been taken care of - will be transferred according to the California "intestacy" laws.

A will is ONLY a reasonable choice to transfer property or name a guardian for children if you:

• Do not own real property, and
• Are not concerned about management of your property during your lifetime (perhaps during a period of incapacity due to illness or advanced age) and
• Are not opposed to post-death distribution of property taking much longer and being much more expensive than a trust administration.

Most California estate planning attorneys agree that a will by itself is an inadequate planning tool for people who own substantial assets (above $100,000 in value), or who are concerned about avoiding conservatorship if management of their property during lifetime becomes necessary.

Wills are disfavored as the foundation document for two reasons:

• Property controlled by a will must pass through the probate process
• Guardianship nominations and other directions regarding children or property made in a will are only effective after the person who made the will has died.

It is not unusual for people to experience a period of unconsciousness or reduced mental incapacity after an accident or the onset of an illness but before death. During this time - when the person who has made the will is unable to communicate - the only way for a family member to manage the sick person's property is to go to court and ask to be appointed as a conservator. The conservatorship process involves hiring an attorney for the person whose assets will be controlled - often the person seeking the conservatorship will also choose to hire an attorney. Both attorneys are paid out of the assets of the sick person. For this reason, conservatorship has been described as "a lawsuit you file against yourself" - another popular description of the conservatorship process is "living probate."

A well-drafted estate plan, however, will typically include a will. When a person chooses to manage and plan for their property with a living trust, a special will known as a "pourover will" is used. The purpose of the pourover will is to serve as a backup for the living trust - it names the living trust as the entity which should receive the assets of the person who passed away. The terms of the living trust then describe who will receive the property.