August is National Make-A-Will Month, making it a good time to think about an important question: Do you have a will?
But for California families, there is another question that may be even more important:
Is having a will enough?
A last will and testament can be an important part of an estate plan. It allows you to document certain wishes, identify who should receive property that passes through your estate, nominate an executor, and nominate guardians for minor children.
However, a common estate planning misconception is that once you have a will, your planning is finished.
For many California families, it is not.
A comprehensive California estate plan may include a will along with a living trust, durable power of attorney, advance health care directive, beneficiary designations, and other documents designed to protect you and your family both during your lifetime and after your death.
National Make-A-Will Month is a great reminder to get started, but your goal should be bigger than simply checking “make a will” off your list.
What Does a Will Do in California?
A will allows you to put important instructions in writing regarding what should happen after your death.
Depending on your circumstances, a will can be used to:
- Identify beneficiaries who should receive certain assets
- Nominate an executor to administer your estate
- Nominate guardians for minor children
- Provide instructions regarding the distribution of property subject to the will
- Work together with a living trust as part of a larger estate plan
Without a valid will or other estate planning arrangements, California law may determine who receives property from your estate.
We explain that process in greater detail in What Happens If You Die Without a Will in California?.
Creating a will gives you significantly more control than leaving these decisions entirely to California’s intestate succession laws.
But a will has limitations.
Does a Will Avoid Probate in California?
This is one of the biggest estate planning misconceptions we encounter.
Having a will does not, by itself, avoid probate in California.
A will tells the court and your executor how you want property subject to the will handled. It does not automatically remove that property from the probate process.
Whether formal probate is ultimately required will depend on the assets involved, how those assets are titled, their value, beneficiary designations, and whether other probate exceptions or simplified procedures apply.
This is important because many people create a will specifically because they believe they are protecting their families from probate.
They may be surprised to learn that their family could still have to navigate the California probate court system.
For a deeper explanation, read Can a Will Help You Avoid Probate in California?.
Families who want to reduce the likelihood that certain assets will require probate often need to consider additional estate planning strategies.
Why Consider a Living Trust?
For many California homeowners and families, a revocable living trust becomes a central part of their estate plan.
Instead of relying exclusively on a will to transfer property after death, certain assets can be transferred into the living trust during your lifetime.
You generally remain in control of those assets while you are alive. You can typically buy and sell property, manage accounts, change beneficiaries, amend the trust, or revoke the trust while you have the legal capacity to do so.
When you die, the successor trustee you selected can manage and distribute the assets held by the trust according to its instructions.
Properly funded trust assets can generally be transferred without going through the formal probate process.
Our article on How to Create a Living Trust in California provides a more detailed explanation of how these trusts work.
The phrase properly funded is important.
Simply signing a trust document does not necessarily accomplish your goals if assets intended for the trust are never transferred into it. Real estate and other appropriate assets must be reviewed to determine how they should be titled and coordinated with the rest of the estate plan.
If I Have a Living Trust, Do I Still Need a Will?
Often, yes.
A will and a living trust do different things, and they are frequently used together rather than viewed as an either-or decision. We discuss this in greater detail in our previous article, What is the Difference Between a Will and a Living Trust in California?
For example, a comprehensive trust-based estate plan will commonly include what is known as a pour-over will. Among other purposes, this type of will can provide instructions for assets that were intended for the trust but were not transferred into it before death.
A will can also be particularly important for parents of minor children because it can be used to nominate a guardian.
The more useful question, therefore, is not necessarily:
“Should I have a will or a trust?”
It is:
“Which estate planning documents do I need to accomplish my goals?”
The answer depends on your family, property, finances, beneficiaries, and what you want to happen if you become incapacitated or pass away.
A Will Does Not Plan for Incapacity
There is another major limitation to relying only on a will.
A will primarily addresses what happens after you die. It does not provide a complete plan for what happens if you are alive but unable to make decisions for yourself.
Imagine that an accident, stroke, serious illness, dementia, or another medical condition leaves you temporarily or permanently incapacitated.
- Who can manage your financial affairs?
- Who can communicate with financial institutions?
- Who can make health care decisions?
- Who knows what medical care you would or would not want?
A complete estate plan can address these questions through documents such as a durable power of attorney and an advance health care directive. A living trust can also provide a structure for managing assets held in the trust if the original trustee becomes unable to act.
Shoup Legal discusses the importance of this planning in Your Voice Matters: Understanding Advance Healthcare Directives.
Estate planning should protect you during your lifetime, not just distribute your property after death.
Your Beneficiary Designations Matter Too
Another reason a will alone may not be enough involves assets with beneficiary designations.
Retirement accounts, life insurance policies, and certain financial accounts may pass according to beneficiary designations rather than instructions contained in your will.
That means an outdated beneficiary designation can create an unintended result even when you have a recently prepared will.
For example, someone may update a will after a marriage, divorce, birth, death, or other major life event but forget to review beneficiary designations established many years earlier.
This is why estate planning requires coordination.
Your will, trust, beneficiary designations, account ownership, real estate, powers of attorney, and health care documents should work together rather than operate as unrelated pieces.
Our article Protecting Your Loved Ones with Estate Planning discusses several of these important elements.
National Make-A-Will Month Is a Good Time to Review an Existing Estate Plan Too
Make-A-Will Month is not only for people who have never created estate planning documents.
It is also a good reminder for people who already have a will or trust to pull those documents out and review them.
Ask yourself:
- Is the person I named as executor still the right person?
- Are my beneficiaries still correct?
- Have I purchased or sold real estate?
- Have there been births, deaths, marriages, or divorces in my family?
- Have my financial circumstances changed significantly?
- Are the people named to make financial and medical decisions still appropriate?
- Have assets been properly transferred into my living trust?
Estate plans should evolve as your life changes. Our guide to How Often You Should Update Your Estate Plan identifies some of the milestones that should trigger another look at your planning.
Make August the Month You Take the Next Step
National Make-A-Will Month provides an important reminder: everyone should consider what will happen to the people and property they leave behind.
Creating a will is an excellent place to start.
Just do not assume it is necessarily the place to stop.
For many California families, effective estate planning requires looking beyond the will and considering probate, living trusts, incapacity planning, beneficiary designations, real estate, minor children, and other individual circumstances.
If you do not have an estate plan, August is a great time to begin.
If you already have one, it may be a good time to make sure it still reflects your life today.
Shoup Legal helps individuals and families throughout Southern California create comprehensive estate plans designed around their unique circumstances and goals. Whether you are creating your first will, considering a living trust, or reviewing documents prepared years ago, our attorneys can help you understand your options and put an appropriate plan in place.
Frequently Asked Questions
Is August National Make-A-Will Month?
Yes. August is recognized as National Make-A-Will Month, making it a timely reminder to create a will if you do not have one or review an existing will to make sure it still reflects your wishes.
Is a will enough for estate planning in California?
A will may be an important part of an estate plan, but it may not address every need. Depending on your circumstances, a comprehensive California estate plan may also include a living trust, durable power of attorney, advance health care directive, beneficiary designations, and other planning documents.
Does having a will avoid probate in California?
No. Having a will does not automatically avoid probate. A will provides instructions for administering property subject to the will, but whether probate is required depends on factors such as the assets involved, how they are owned, their value, and whether another method of transfer applies.
What is the difference between a will and a living trust?
A will generally provides instructions that take effect after death and can nominate an executor and guardians for minor children. A living trust can hold assets during your lifetime and provide instructions for their management and distribution during incapacity and after death. Assets properly held in a living trust can generally be transferred without formal probate.
Do I need both a will and a living trust in California?
Many estate plans use both. A living trust and will perform different functions and can work together as part of a comprehensive estate plan. Whether you need a trust will depend on your assets, family situation, goals, and other circumstances.
What happens if I die without a will in California?
When someone dies without a valid will and property is not otherwise transferred through a trust, beneficiary designation, joint ownership, or another method, California’s intestate succession laws may determine who inherits the applicable property. Creating an estate plan allows you to have greater control over how your affairs are handled.