Making out a will a mature decision for family

  • Published
  • By Office of the Staff Judge Advocate
  • 60th Air Mobility Wing Judge Advocate
TRAVIS AIR FORCE BASE, Calif. --  Wills and Probate

Often the last item on someone's to-do list is writing a will.
While the decision to have a will is a personal decision, failure to prepare one may have a severe impact on loved ones left behind.

Those who pass away without one can leave their families with unnecessary, unpleasant and often expensive probate. Dying without a will is called intestacy. The person who receives the decedent' s property under the intestacy laws may not be the person they would have wanted to receive the property. In fact, if the deceased has no living relatives, the state may get the property.

The law of your state of legal residence will determine who will receive your valuables, money and property. Your legal residence is the state with which someone has the most contact or where you own real estate. While all states have laws which determine who will receive your property when you die, without a will, these laws can vary greatly from state to state.

For example, if someone is single, has children and their home state is California, their property will be divided equally among their children. If someone has no children, the property will be divided equally between two parents or, if only one parent is living, that parent will receive all property. What if there are no children or living parents? The property will then be divided equally among your living brothers and sisters.

For those with children, a will becomes even more important. In a will, a legal guardian is named for any children. A guardian is someone who has the legal right to care for the physical well being of minor children. You should appoint an individual to care for your children in your will. Additionally, some states require appointing an individual to take care of a minor child's financial well being. This person is called a conservator and should also be appointed in a will and may be the same person as the guardian. The state will appoint a guardian or conservator if there is no will. It is also a good idea to name alternates for the guardian and conservator.

What to do when a loved one passes away?

Planning for the death of a loved one is not something anyone wants to consider. However, it is easier on friends and family of the person who passes, if these matters are considered now rather then when it is too late.

An individual's estate will be probated in the state of California if the decedent dies while a resident of the state of California or if they leave property inside California. The probate court handles not only the distribution of property but also the payment of the decedent' s debts. 

If a will exists, the person who handles the estate under the terms of the will is the executor. The executor is named in the will itself. If a will does not exist, or the will does not name an executor, the court will appoint an administrator to manage and distribute the assets. 

An estate will not be handled by the probate court if: 

-- There is a surviving spouse and the estate consists entirely of community property

-- The property is held in joint tenancy with another person

-- The property is transferred by gift before death

-- The property is placed into a certain type of "living trust" 

The following steps should be taken when a person dies:

1. Within 30 days after the person's death, the individual with the will must file it with the superior court of the county in which the decedent lived

2. The judge makes sure it is the decedent' s will, appoints the executor named in the will or appoints an administrator, and supervises the executor's work

3. The probate court issues "Letters of Testamentary" or "Letters of Administration." These letters name the executor or administrator and permit them to handle the decedent' s affairs with banks, title companies, tax authorities, etc.

4. The law requires publication of a Notice of Petition to Administer the Estate. This is a notice to all creditors to file their claims against the estate. Creditors usually have 4 months to file.

5. If no will exists, then California state law determines who gets the decedent' s estate. The court will direct distribution of the estate according to those laws.

Typically, it takes four to six weeks after the decedent' s death to appoint an executor or administrator, and a minimum four-month wait after the Notice to Creditors is issued before any further action can be taken.

*The information in this story is general in nature. It is not to be used as a substitute for legal advice from an attorney regarding individual situations. 

Legal Assistance and Wills are provided by appointment only. For more information, call 424-3251 or 424-0991.