Estate Planning Process in California

The key estate planning document that determines the future of your estate after your death is called a last will and testament (more commonly known as a “will”). A will can be used to:

• provide for any outstanding debts or final expenses;
• leave your remaining property to individuals or organizations;
• name a guardian to care for your minor children or conservator to care for incapacitated adult children; and
• appoint someone to manage your property on behalf of your minor children.

A knowledgeable estate planning attorney near you can help you draft a will that accomplishes your goals for your estate and gives your family a clear understanding of your wishes. The Legal Reps can also advise you on how to address any unusual circumstances (for example, if you believe surviving family members may contest the terms of your will).

Your will should also name an “executor” – in other words, someone who will have responsibility for carrying out the terms of your will. If you do not name an executor, the probate court will appoint one after your death. An executor, like a probate administrator, will be responsible for:

• preparing an inventory of all assets in the deceased person’s estate and identifying and notifying potential creditors that may have claims on those assets;
• paying bills, taxes or other debts out of the estate; and
• protecting the assets in the estate until they can be sold or distributed in accordance with the terms of the will.

Under California law, an executor is entitled to compensation for performing these duties, and that payment is also made from the estate.

To properly finalize a will so that it is recognized as valid under California law, you must sign your will in front of two witnesses, and both witnesses must also sign the will simultaneously with each other. Neither witness should be a beneficiary of the will (i.e., someone who stands to inherit part of your estate), as this may invalidate your beneficiary’s claim to any inheritance under state law. An attorney can help you identify or provide witnesses if needed.

You can revoke or change your will at any time before your death. A certified estate planning attorney in California can help you revoke and revise your will or add simple amendments (or “codicils”). An amended will must be finalized using the same formalities as the original will to be valid.

Listed below are other important components of the estate planning process.

Our estate planning checklist helps ensure you do not miss important steps in the estate planning process. 

One of the first steps in the process is disclosing all your heirs to your attorney. For many people, this is the most difficult part of estate and asset planning. Many estates encounter problems after the decedent’s death because they kept secrets hidden. For example, the child born to the decedent as a teenager who was raised as a sibling to their parent but never formally adopted, or the child from an earlier relationship that the current spouse never knew about. 

If your attorney knows your secrets, they can plan for potential bumps in the road. If they do not know the true extent of your potential heirs, the estate is likely to encounter difficulties.

It is difficult to draft a Last will & Testament or a Revocable Living Trust that will survive challenges when the attorney doesn’t know all the potential heirs.

Take time to consider what you want to accomplish with your estate based on what is important to you. Consider your heirs strengths and weaknesses honestly and communicate any concerns to your attorney.

Your estate plan is not complete until you have the following documents:

• Last Will & Testament
• Revocable Living Trust
• Advance Health Care Directive (the overview in California not be be misinterpreted as living wills)
• Durable Power of Attorney for Finances
• An asset plan (includes titling assets in a way that is consistent with your estate plan)
• Named guardian if you have minor children

In addition, you may also need:

• Insurance (life and/or disability income)
• Special Needs Trust (if a child or spouse has special needs)
• Key Man insurance if you own a business. 
• A business succession plan

 It is a good idea to communicate with your heirs and let them know what your wishes are when it comes to the distribution of your assets. Direct communication from you can avoid costly beneficiary disputes later.

At a minimum, review the plan anytime your family changes through marriage, divorce, death, adoption, or birth.