California Estate Planning Laws

California Wills

A will leaves personal and real property to beneficiaries after the person who wrote the will (the "testator") dies. That's the basic definition of a will. You don't need to have a particular amount of money or type of property to leave a will.

In California, you must meet a few basic requirements. You must:

• Be 18 years of age
• Be of sound mind
• Have two witnesses available to sign your will

Probate

If your estate (the total amount of money and property you have at death) exceeds $184,500, it must go through probate. The California probate process determines if the will is valid and pays any debts the decedent owed before the heirs and beneficiaries receive anything.

Probate court in California can last from nine to 18 months, although it generally takes about a year to notify creditors and resolve any issues. People with real estate or large bank accounts may want to consider other methods of disposing of their estates.

Dying Without a Will

Dying without a will is called intestacy. If you leave a small estate or your family knows your wishes, your estate does not need to be probated. In the state of California, all property goes to the surviving spouse, and then to any surviving children. This only causes issues if there was any specific property you promised to anyone, and there is no written record to confirm it.

California Trusts

A trust is a method of ensuring property goes to designated beneficiaries without using probate. It requires the person who owns the property (the "grantor") to allow another person (the "trustee") to administer the property on behalf of the beneficiaries while the grantor is still alive. California trust laws allow the grantor to be trustee and beneficiary of the trust as long as there is at least one other beneficiary.

While you are alive, the trust is a "living trust" or a "revocable living trust." You can still make changes to the trust when you choose. A revocable trust becomes a testamentary trust after you die. A trust the beneficiary can't change is an irrevocable trust.

The main advantage of a trust is it does not need to be probated.

The trustee's duties include paying estate taxes and creditors from the trust property, including the final payments upon the grantor's death. This means there is no need for probate. The trustee can distribute the trust assets according to the trust instructions immediately.

Living Wills and Powers of Attorney

Although the name is similar, a living will has nothing to do with your property. In California, a living will is more appropriately called an advance health care directive. These documents give you and your loved ones peace of mind if you cannot make medical decisions.

California's living will laws allow you to designate a friend, family member, or other individual to make decisions about life-prolonging medical treatment if you are unable to tell the doctors what you want. If you do not want treatment that will prolong an irreversible condition, your designated agent can speak on your behalf based on what you stated in your living will.

For routine medical care, if you are unable to express your wishes, you need a durable power of attorney. Durable powers of attorney (POA) let you name another person to act as your agent and make decisions on your behalf. You can limit the powers of attorney. For instance, a financial power of attorney can only decide financial matters. A medical power of attorney can make medical decisions when you are unable to do so.

Whenever you want to revoke a durable power of attorney, you simply tell your doctor you want to end it.

What About Death With Dignity Laws?

The California End of Life Law has undergone some changes since the first End of Life law was passed in 2015 and repealed two years later. The current law, CA Health & Safety Code section 443 - 443.22, is unrelated to the California probate code.

The End of Life law involves a decision made by a terminally ill individual during the last days or hours of life and is not relevant to estate planning issues.

Updating Your Estate Plan

Once you write a will, trust, or living will, keep it up to date. Any changes to your will must follow the same legal requirements as the original. People sometimes think crossing out a beneficiary or a bequest and writing in a new one is fine as long as they initial and date it. This is incorrect. Estate planning services should explain this to you, but be sure you ask an attorney.

If you and a spouse write a will together and get divorced, California probate law revokes all inheritances each spouse would have received from the other. However, this is not the end of the matter. Case law may grant your former spouse things like your life insurance policy, retirement account, and similar financial property unless you have a new will. Following a divorce, you should see an attorney to revoke your first will and write a new will.

You should update your trust the same way. You need a successor trustee in case your designated trustee is unable to serve or predeceases you. It's a good idea to review your trust administration periodically and ask your trustees if they're still willing and able to serve. Keep addresses and contact information current.

Today Is a Good Time To Plan for Tomorrow

Californians don't want to think about their last days any more than other Americans. Leaving your family without letting them know your wishes is never a good idea. If you become ill or incapacitated and cannot let them know what you want in your final days, they won't be able to help you, even if they know what you want. State law requires legal documents, and the courts are reluctant to intervene.

Take time to find a probate attorney near you, and spend some time writing out a will, trust, and/or advance medical directive. Give yourself and your relatives some peace of mind.