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Estate Planning: Creating a Will

August 16, 2017
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What is a will?

A will is basically a legal document specifying how you would like the executor, the person you name to execute your will, to handle your estate or possessions and who your beneficiaries are. Beneficiaries are simply individuals to whom you leave an inheritance.

In your will, you can specify which possessions, such as houses, cars, jewelry, and family photographs, go to specific people as well as how the executor is to handle your debts and certain accounts. Certain accounts and policies, such as a 401k and life insurance policies, cannot be included in a will as you should have named your beneficiaries when opening them. If you’re unsure, now is a good time to check.

What happens if you die before creating a will?

In California, and most other states, if you die without a will, your estate will go into probate, meaning your possessions will be handled by a court-appointed administrator in accordance with state laws. They will equally divvy up your estate among your heirs, which may include close or distant relatives. If no heirs exist or can be found, the state inherits your estate.    

Is your will legitimate?

California laws regarding the legitimacy of a will are pretty simple:

  • The testator, or the person who writes or whose wishes are recorded in the will, must be at least 18 years of age.
  • Wills must be signed by testator.
  • At least 2 witnesses must be present during signing or acknowledgment of the will and be made aware that the document is a will.
  • Oral wills, or nuncupative wills, are not recognized by state law, regardless of whether witnesses were present.
  • Written wills, also known as holographic wills, are legitimate so long as the contents and signature are in the handwriting of the deceased. No witnesses are required; however, executing the intent of a handwritten will can get complicated if heavily contested.

Do you need a lawyer to create a will?

Unless the terms or validity of a will is contested, lawyers are generally unnecessary for both planning and execution. Though a knowledgeable attorney can guide you through the process, reliable do-it-yourself guides and software are available. As long as you observe your state’s legal requirements, your will is valid whether a lawyer prepared the document or you scribbled it down in a notebook.

When considering who to name as executor of your will, you may want to name a trusted party other than an attorney, as California statutory attorney probate fees are…exorbitant. Current rates are based on a percentage of your gross estate value and are as follows:

  • 4 percent of the first $100,000
  • 3 percent of the next $100,000
  • 2 percent of the next $800,000
  • 1 percent of the next $9,000,000
  • 5 percent of the next $15,000,000

For example, if you’re total estate was worth $1 million, the attorney’s statutory fee would be $26,000. This is true regardless of whatever debt you may owe – fees are calculated on the gross or original value of your assets, not the net worth after debts are paid.

Legal fees are definitely a cost you want to consider when calculating your beneficiaries’ inheritance and deciding whether to hire a lawyer. In the end through, hiring a lawyer is a decision that is entirely based on what you feel comfortable with and what you can afford.

If you don’t feel comfortable creating a will on your own, there are other experts who can help guide you through the process, such as an income specialist who can guide you through all aspects of retirement and end-of-life financial planning, including formulating an investment strategy and organizing your estate.

It should go without saying that life is pretty darn unpredictable. Creating a will may force you to face your mortality, but the earlier you begin planning, the more secure your finances and your loved ones will be. If you’re interested in protecting your future and the future of your loved ones, please contact Retirement Income Specialists. We’ll help you create a comprehensive financial strategy, from social security maximization tactics to estate and legacy planning.