Wills
A will is one of the two documents almost every estate plan needs. This page explains what it does and who needs one.
What is a will?
A will is a document that specifies who gets listed property when you die. It can also appoint a personal guardian for your minor children.
Who needs a will?
Anyone who has minor children, or who owns property that he or she cares about. In short, almost everyone.
Parents of young children
A will is the appropriate place to nominate a guardian to care for your minor children and a guardian to manage your minor children's financial resources. The same person may be nominated for both jobs, or you may nominate two different people. Usually people nominate the same person, unless the personal guardian is unable or unwilling to manage the money.
Without a will, what happens to minor children? If both parents die without a will, a court determines who should serve as guardian to care for minor children and who should serve as guardian of the children's financial resources.
There are at least three significant drawbacks to leaving these decisions to a court. First, the court may not make the same decision you would have made. A court will usually choose the children's nearest blood relative, but it will not know your wishes or what you deem important for your children, and it will not necessarily ask the same questions you would have asked.
Second, a court process to determine guardianship will cost your estate money that could be put to better use for the care and upbringing of your children.
And third, the court process takes time, and the children may face uncertainty while the court makes its decision. In cases where more than one person petitions for custody, the children may be affected by the dispute.
People who own property they care about
If you don't have a will, or another estate planning device such as a living trust, property passes intestate, which means your property goes to various relatives according to statute. In California, intestate succession is governed by the Probate Code, starting with Section 6400.
Generally, a surviving spouse will receive the largest share of a decedent's estate, with surviving children or grandchildren receiving the remainder. If there is no surviving spouse, the children or grandchildren share the estate. If there are no surviving children or grandchildren, the decedent's parents share the estate. If there are no surviving parents, the statute names the next closest degree of relative, and if none, then the next closest, and so on.
Intestate succession does not allow a friend to receive the special necklace she always loved, or a favored charity to receive the donation you wanted to make. It can also require liquidation of assets so that each beneficiary receives the exact percentage share of the estate prescribed by the California Probate Code.
If intestate succession does not match how you would like to distribute your property, then you need a will or another estate planning device.