Attorney Debra DeCarli assists families and individuals with all their estate planning needs. Her practice focuses especially on:
The office of DeCarli Law is located in the beautiful coastal vacation town of Mendocino. Attorney DeCarli can assist clients anywhere in California, and is happy to conduct virtual and telephone meetings.
A will, or "Last Will and Testament," is an essential element of basic estate planning. Understanding what a will is—and knowing what will happen if you don't have one—is an important cornerstone of the of the estate planning process.
A Last Will and Testament is a legal document that provides your instructions for distribution of your property and assets after your death. Because a will is a formal document with significant legal implications, there are specific requirements set by state law for executing (signing) a will in order for it to be valid.
In California, a will is only part of the equation for basic estate planning. If you own real property, a trust will also be part of your estate plan.
A living will is not the same as a will. A living will—also called an advance directive or healthcare directive— is a different document. In it, you state you wishes for end-of-life medical care, to guide your family and medical professionals in the event you become unable to express your wishes. A living will is often part of a comprehensive estate plan.
If you die without having a will—referred to as dying intestate—the law of the state where you reside at your death will determine who receives your property.
Under California law, if you die intestate and are married or are in a registered domestic partnership, your spouse or domestic partner will receive part of your separate property, in addition to receiving all of your community property assets. The other part of your separate property will be distributed to your children or grandchildren, parents, sisters, brothers, or other close relatives. If your spouse or domestic partner dies before you, his or her relatives may also be entitled to part or all of your estate.
If you are not married or in a registered domestic partnership when you die, your children or grandchildren will be entitled to your property. If you have no children or grandchildren, your assets will go to your parents, brothers, sisters, or other relatives. Your friends, non-registered domestic partners, and charitable organizations receive nothing if you die intestate.
If you die without a will, and you and your deceased spouse or registered domestic partner have no living relatives, your estate assets go to the State of California.
By making a will, you take care of your family and loved ones by accomplishing a number of tasks:
The primary purpose of a will is to name beneficiaries: the individuals, trusts or organizations that will receive your property. Beneficiaries can include a spouse or domestic partner, trusts, other family members, friends, and charitable organizations.
Gifts to beneficiaries can be made in the form of real property, personal property, or cash. Making gifts of personal property can be important, if you have family heirlooms or other items that you would like someone specific to have. A will also names a residual beneficiary, who will receive the assets of the estate remaining after all specific gifts have been made.
Your will can name the person whom you would like to be responsible for a child under 18 years of age if both parents are deceased. You can name one guardian for a child’s personal care and management of assets given to the child, or you can name two different guardians for the separate responsibilities.
In the will, you name an executor, who will be the person or institution overseeing your estate. The executor pays outstanding bills, expenses, and taxes; makes sure that your real and personal property is given to those you designate as beneficiaries; and eventually settles your estate.
The executor plays a very significant role and should be selected carefully. You can appoint someone you know and trust, such as a spouse, domestic partner, or other family member. You can also choose an institution like a bank. When individuals are named as the executor in a will, it is customary to identify an alternate executor to serve in that capacity in the event the primary executor is unable to serve.
Your will includes only assets that are titled in your name at your death. It does not include items for which you have designated a specific beneficiary and some property that you hold jointly with another person. Excluded items include:
Not only can you change or revoke a will after you have made it, but you should revisit it periodically to make sure that it’s up to date. Events like marriage or divorce, registering or terminating a domestic partnership, having or adopting a child, death of a beneficiary, and other major life events can significantly impact the effectiveness of your will.
However, you cannot change a will simply by crossing out sections or writing in additions or changes. The same formalities and execution requirements apply to changes in a will that apply to making it in the first place. You can either make a new will that revokes the prior one or execute an amendment to your original will—called a codicil—to change some of the provisions of the original will.
If you have minor children, it is critical to ensure that a person you know and trust will manage property on their behalf and take care of them in the event both parents die. Usually, a trust is the best way to handle this.
In addition, if you have any separate property when you die, a will ensures that those assets are distributed according to your specific wishes. Even if most of your property is held jointly with another person, there is always the chance that you will acquire separate property through an inheritance or otherwise. There is also the chance that your joint owner will predecease you, leaving you as the sole owner of the property.
With assets like retirement accounts and life insurance policies, if your named beneficiary dies before you do, those assets could end up in your estate. Making a will, usually along with a revocable living trust, ensures that your property is distributed exactly in the manner you prefer, rather than being distributed by a court according to state law.
If you are thinking about making a will—or if you have a will that needs to be updated—schedule a free initial consultation with Northern California attorney Debra DeCarli. After discussing your situation and wishes, Attorney DeCarli will work with you to make sure your will provides for distribution of your estate exactly the way you wish. She also provides a full range of trust and estate planning services, if your needs extend beyond a will. Attorney DeCarli's office is located Mendocino. She assists clients throughout California. Use the DeCarli Law online contact form or call (707) 937-2701 or (800) 402-4720 to set up a no-cost telephone, in-person, or virtual consultation.