|What does a Will allow me to do?
|A Last Will and Testament is a legal document or instrument that allows an individual to
specify how his or her estate will be managed and distributed after his or her death. It
also allows an individual to name who he or she wishes to manage the estate, and, it
allows an individual to name who he or she wishes to serve as guardian of his or her
minor children. In the absence of a will, the laws of the state determine who will receive
the estate, who will manage the estate, and who will serve as the guardian.
||Heirs of an Individual who dies without a Will
|The laws that govern who an individual's heirs are in the absence of a will (intestacy
statutes) are complex and are found in the California Probate Code, specifically
California Probate Code Sections 6400-6414. The determination of who receives the
decedent's estate is dependent on multiple variables, but begins with the character of
the property and whether the individual was married.
According to the intestacy statutes, a decedent's half-interest in community property
passes to the surviving spouse.
The decedent's separate property passes differently If the decedent is survived by a
spouse and no children, all of the decedent's separate property passes to the surviving
spouse. If the decedent is survived by a spouse and a child, the separate property
passes equally to the spouse and the child. The following chart shows some of the
|What is wrong with letting the State decide who receives my assets?
The simple answer is that your estate may pass to individuals other than those to whom you want it to pass. In today's
world where combined families are becoming more the rule than the exception, the laws of intestacy may present
A man, John, and a woman, Mary, are married, both for the second time. Both have children from a previous
marriage. They have chosen to enter the marriage and make all of their property community property. John, who has
no will, dies before Mary. His entire estate passes to Mary. Mary dies shortly after John. She has no will. Her estate
passes to her children. John's children receive nothing of their father's estate.
Mary is widowed. She and her husband had no children. Mary's parents are long gone, but she has a sister and a
brother. Her sister has been very close to Mary, and has been an invaluable friend to Mary throughout her lifetime.
Mary's brother, on the other hand, has never been kind to Mary. He has not had a relationship with her for many
years, and, quite frankly, the two do not like each other. Mary would not wish for him to benefit from her estate in any
way, however, Mary dies without a will. Her estate is divided equally between her sister and her brother.
The possibilities are endless. Ultimately, the end result is: You relinquish your right to decide who
will benefit from your estate.
|Does having a Will avoid Probate?
with some exceptions. Those exceptions are very specific. If your estate is worth more than $100,000.00 or if you
have real property in California that is worth more than $25,000.00, then your estate must be probated even if you
have a will. The will is important, as shown above. Without it, you do not decide who inherits your estate, or who will
manage the estate. However, it does not allow for the avoidance of probate proceedings (For more information on
probate proceedings, see What is Probate? )