What if I don't have a Will or a Trust?
If you die without a Will or a Trust, California law will decide who gets your assets. Depending on a number of factors, your assets could go to a spouse, children, or other heirs or persons as specified by law. There are variations depending on marital status, classification of property as separate or community, whether you have children and how title is held to property. It is impossible to give a general answer because every fact situation is different.
If your assets exceed $150,000 your heirs may have to go through probate to make the transfer. One of the advantages of a Will or Trust is you can decide who gets your assets. This is particularly important if there is someone you don't want to receive anything
How does a Will work?
In California, assuming your assets are in excess of $150,000, at your death someone (typically, the person named executor) would file a petition in the Superior Court of the county in which you lived. The court would then formally appoint them Executor and authorize them to act on behalf of your estate. This would allow them to gain access to your bank accounts, real property and other assets. They would then have to account for them to the court, make sure your creditors are paid and then ask the court for permission to distribute your assets to the persons you named as recipients. The same process would be used if you don't have a Will or a Trust. The biggest difference is that without a will, the law will determine who your heirs are and who is entitled to your estate. With a Will you can name anybody you want, including individuals, charities, other entities or any combination of them.
What is probate?
Probate is a court supervised procedure to oversee the transfer of your assets to the beneficiaries you have named in your Will or, if you don't have a Will, to see they are distributed to those persons entitled to the estate as required by law.
Can I change my Will once I sign it?
As long as you are mentally competent and capable of communicating your wishes, you can change the provisions of your Will. You can even revoke it completely if you choose to do so.
The information set forth above is intended as a general summary of the most common situations incurred. There are many other circumstances which can create other situations providing other requirements and/or remedies, not all of which are addressed herein. Because of space limitations it is impossible to cover every contingency. You should consult a knowledgeable attorney for specific information related to your case.
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Sacramento, CA 95825
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William J. Sweeney
Attorney at Law
Telephone: (916) 786-2011