Myth #1: I don't have a lot of assets, so I don't need a Will
Even though you may not have a lot of assets, having a Will is the minimum Estate Planning document you should create. It will provide a roadmap of how your property and money is distributed to your loved ones and ensures that your wishes on how that should take place. It provides instructions for specific gifts to your loved ones and can guide your beneficiaries as to who shall make sure your wishes are followed. The Will is not filed with a Court until you have passed away and only then does the Court supervise the distribution of your property.
When a Probate Estate is filed with the Court, they will appoint and executor of your Estate to manage the gathering of your property documentation, will be required to update the Court on the progress of finalizing the Probate Estate. This is a slow process with most cases taking between 6-18 months until the property can legally be distributed, and the funds become available for paying expenses, Court fees, and statutory fees as outlined in the Probate Code of California.
If you own a home, even with a mortgage on it, in California, you should have a more complete Estate Plan to minimize the amount of capital gains taxes your beneficiaries will have to pay based on the value of the home. This can amount to thousands of dollars and extreme hardships for them.
If your home is in California, you should seek the advice and counsel of an Estate Planning Attorney. This may avoid a large amount of the taxes owed with just a Will and what would be deferred if the home was in a Living Trust. Then the Attorney would want you to have a Pour-over Will that allows for your executor to put any property with significant value into the trust after you have passed away. In any case, it is better to have a Will than to have your Estate move through the Court system under the Intestacy laws of California.
Myth #2 I don’t need a Will because my loved ones know what I want done with my property
Contrary to that belief, most family members do not know what you want done and will be much more likely to disagree about who and how your Estate is distributed. As stated in Myth #1, your loved ones will not have a say in what happens with your Estate as the State of California and the Court system decides based on the Probate Code. They distribute the assets of your Estate as they see fit and may give your belongings to whomever they think you would want.
This slows down an already long process in the Courts. In Los Angeles, a simple Will in a Probate Estate typically takes 6-18 months and during that time, the assets of your Estate are unavailable for istribution.
Myth #3: I am not old enough to need a Will in the United States, a person is more likely to become incapacitated than die in any given year.
The statistics show that at any given time during the year about 2,600,000 die each year, but 103,600,600 people become incapacitated. That is approximately a 39% higher number of incapacity that could affect your ability to write a Will or make your wishes known to your loved ones.
It is never too early or too expensive to prepare a Will. Many younger people could prepare their own Wills on-line and update it as they acquire more property, get married, have children, travel or purchase a home.
Myth #4: I already have a Will, so I don’t need to worry about it anymore
As stated in Myth #3, as you go through life, your situation will change, your responsibilities
will change, your relationships will change and your goals will change, A good rule of thumb
is to review your Estate Plan and your Will in particular, to make sure that you have taken into consideration the inevitable change that occurs as we get older.
You should do this every 3-5 years. An Estate Planning Attorney can help you when you need to establish a more robust and current estate plan when you no longer have the resources to complete an Estate Plan by yourself. Remember that you have responsibilities to your loved ones and as you go through life’s ups and downs, you should think about how you need to change your Will with the changes that happen throughout your life.
Myth #5: I would have to file my Will with the Courts and then my family would be able to see who and what I plan to do with my Estate
Only one State requires that a Will be filed with the Court when it is created. In California,
there is no requirement to file a copy of your Will with the Court. In fact, they prefer that
the Will be filed when there is a Probate Estate case brought to the Court because you
have passed away. When you sign your Will in private, it becomes valid and would be
admissible when needed by the Court.
Most States only require that your have 2 or 3 witness watch you sign your Will. The witnesses are not required to review your Will or know what you have written. Many people have the required number of witnesses sign the Will and then have it notarized to provide further proof that the Will is valid, but the option is NOT required in California.
When you have your validly signed and witnessed Will, you should keep it in a safe and
secure place like a safety deposit box. As an Estate Planning Attorney, my law firm provides
paper copies of the Will and then also provide an electronic copy of the photocopied of the
Will on a jump drive, for additional security and to provide an easy way to carry your Estate
Plan with you when you travel or need to provide electronic copies to your Attorney or