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Last Will and Testament

A will directs who will receive someone's assets when he or she dies. It's a legal document, made in accordance with state law, but has no affect on either probate or estate taxes.

The only requirements to make a will are to be "competent" and to be over eighteen years old. Competence is demonstrated by acknowledging that the document is the person's will, that he or she knows who his or her nearest relatives are, and that he or she has a very rough idea about what assets are owned. A will isn't required to actually leave any assets to anyone, not even to a spouse, any children, or other living relative.

There are several types of wills recognized by the State of California. The most traditional is a witnessed will, which includes the signatures of two witnesses as well as that of the will's creator. A handwritten or holographic will, entirely in the person's handwriting, is a second type. No witnesses are required for a handwritten will, but all the material portions of the will must be handwritten, which must also be dated and signed by the creator.

There are other types of wills recognized as legal by the State of California. If the will was made and was valid under any of the following conditions, it would be a valid will:

1. If the will was made and valid where it was signed.

2. If the will was made and valid where the creator lived when he or she signed it.

3. If the will was made and valid where the person had a residence when he or she signed it.

4. If the will was made and valid where the creator was a national or a citizen.

Because of a treaty signed by the United States, nearly every will made anywhere is valid. If the will meets certain requirements and was executed in accordance with the laws of the country where it was created and signed, it will be valid in California, although it should be reviewed to see if any changes should be made.

A will controls the disposition of assets in the name of the person who died, the decedent. A will neither controls nor acts on assets that were set up in any of the following ways:

1. Any assets that are registered as held in joint tenancy with another person or persons. By law, such assets automatically go to the survivor or survivors.

2. Any assets that are held in a living trust. The trust agreement or declaration will determine the disposition of those assets.

3. Assets such as life insurance policies, IRA accounts, annuities, and pension and profit-sharing plans that are subject to beneficiary designation. The designated beneficiary will receive the proceeds, no matter what is specified in the will.

4. Assets that were held by the decedent as a trustee for someone else. That person, as beneficiary for the assets, will receive them.

5. Assets that were held by the decedent that were either P.O.D. (payable on death) or T.O.D. (transfer on death) to another person or persons. The named beneficiary will receive the assets.

Videotaped or oral wills are not valid, but there are two statutory wills recognized by the State of California that are. Both of those are fixed, pre-printed forms that require two or more witnesses to be valid.

California law permits you to leave your assets to anyone you want. While many countries and states have restrictions that require at least a portion of the assets go to a spouse, children, or other relatives, California does not. A California will permits the creator to disinherit his or her spouse, children, or any other relatives and leave the assets to anyone he or she wants.

Assets may be left to any inpidual, society, unincorporated association, or corporation you wish. They may also be left to government agencies, cities, counties, the State of California, or any other state. Assets may be left to the federal government, any foreign government, or to any political subpision. The one exclusion is animals. You cannot leave your assets to your dog or cat and, if you do, the court will convert this to trust to take care of the pet until it dies.

The following assets have their disposition controlled by a will:

1. All property of a married person that was held separately, in his or her name alone. This would include assets held before the marriage, or acquired during the marriage by gift or inheritance.

2. All assets held only in the decedent's name if the person was unmarried at the time of death.

3. One-half of each asset that was held in both husband and wife's names as community property.

4. The portion of all assets the decedent owned that were registered with other people or organizations as tenants in common.

5. Assets that were owned, but not registered. This would include physical assets such as jewelry, heirlooms, furniture, and the like.

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Esquire Law Group is committed to answering your questions about Estate Planning, Probate, and Trust Administration law issues in Southern California.

We’ll gladly discuss your case with you at your convenience. Contact us today to schedule an appointment.

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