What is a Will anyway?
Updated: Jan 25
You've probably have heard the phrase before: the last will and testament. The phrase has been used frequently, often on television and movies, and often by families scrambling to tie up loose ends of a family member. While the words might sound weighty, and full of legal mystery, the truth is that the last will and testament (referred from here as just a “will”) has lost its reign as the most important estate planning device. Rather, the living trust has supplanted it. In part, this is because a will must be probated. Nevertheless, a will still has a role to play.
A will allows a person to determine who his property will go to. If a person dies with property without a will or other estate plan, that person’s property will be distributed according to the laws on intestate succession. For example, if a person dies without a will, and is survived by two children and no spouse, the deceased person’s property will go to the two children automatically. With a will, however, the deceased person could bypass his children and have it all go to his dear friend. Thus, the deceased person has control over his property through a will.
Additionally, a person can nominate through a will the person to be the personal representative of their estate when he dies. So, if the creator of the will knows someone he would like to administer his estate, he can nominate that person. It is a job that requires diligence, organization, and patience. Although family members are often the personal representative of the estate, sometimes it is better to nominate a person who is more fitted to the job.
Another key component of a will is the ability to nominate a guardian over minor children. While this feature is inapplicable to people with adult children, a family comprised of young children would be advised to nominate a guardian in the tragic event that the parents die before the children reach adulthood.
As noted before, the modern will has become more of an accessory to its big brother, the living trust. When someone creates a living trust, he will still almost always create what is called a “pour-over will.” The purpose of the pour-over will is to ensure any property not included in the trust estate will still be distributed by the terms of the living trust. For example, a husband and wife create a trust and pour-over will on January 1, 2020, titling their residence in the trust. One year later, they acquire a vacation cabin, but this time do not title the property in the name of the trust. The residence is part of the trust estate, but the vacation cabin is not. The pour-over will ensures that the vacation cabin will still pass according to the trust terms, even though it is not part of the trust estate.
For some, a will is still the best estate planning device. If a person wants to control the distribution of his property, but does not own real estate or assets that amount to $150,000 or more, the attractive benefits of a living trust fades. A will on the other hand still offers the person control over his property and is relatively inexpensive compared to a living trust.
In sum, a will is an estate planning device that has a diminished, but important role to play in modern estate planning.
The information in this blog is intended only as general information, and under no circumstances constitutes legal advice, nor does it create an attorney-client relationship. The information should not be relied upon as a substitute for specific legal advice concerning your particular situation.
For advice specific to your situation, contact us to schedule an appointment.
About the Koons & Riswold Law Office
Koons & Riswold maintains an office in Davis, CA and Auburn, CA to provide clients with legal services in Auburn, Davis, and the surrounding areas. Our Auburn and Davis lawyers provide legal services, which include: Living Trust and Estate Planning services, Probate, Elder Planning, and Trust and Estate Administration. Our lawyers have deep roots in Northern California, having strong familial, community, and professional ties to the region.