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Last Will and Testament
A will directs who will receive someone's assets when he or
she dies. It's a legal document, made in accordance with state
law, but has no affect on either probate
or estate taxes.
| The only requirements to make a will are to be
"competent" and to be over eighteen years
old. Competence is demonstrated by acknowledging
that the document is the person's will, that he
or she knows who his or her nearest relatives are,
and that he or she has a very rough idea about what
assets are owned. A will isn't required to actually
leave any assets to anyone, not even to a spouse,
any children, or other living relative. |
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There are several types of wills recognized by the State
of California. The most traditional is a witnessed will,
which includes the signatures of two witnesses as well
as that of the will's creator. A handwritten or holographic
will, entirely in the person's handwriting, is a second
type. No witnesses are required for a handwritten will,
but all the material portions of the will must be handwritten,
which must also be dated and signed by the creator.
There are other types of wills recognized as legal by the State
of California. If the will was made and was valid under any
of the following conditions, it would be a valid will:
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1. If the will was made and valid where it was signed.
2. If the will was made and valid where the creator lived
when he or she signed it.
3. If the will was made and valid where the person had
a residence when he or she signed it.
4. If the will was made and valid where the creator was
a national or a citizen. |
Because of a treaty signed by the United States, nearly
every will made anywhere is valid. If the will meets
certain requirements and was executed in accordance
with the laws of the country where it was created and
signed, it will be valid in California, although it
should be reviewed to see if any changes should be made.
A will controls the disposition of assets in the name of the
person who died, the decedent. A will neither controls nor
acts on assets that were set up in any of the following ways:
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1. Any assets that are registered as held in joint tenancy
with another person or persons. By law, such assets automatically
go to the survivor or survivors.
2. Any assets that are held in a living
trust. The trust
agreement or declaration will determine the disposition
of those assets.
3. Assets such as life
insurance policies, IRA accounts, annuities, and pension
and profit-sharing plans that are subject to beneficiary
designation. The designated beneficiary will receive the
proceeds, no matter what is specified in the will.
4. Assets that were held by the decedent as a trustee
for someone else. That person, as beneficiary for the
assets, will receive them.
5. Assets that were held by the decedent that were either
P.O.D. (payable on death) or T.O.D. (transfer on death)
to another person or persons. The named beneficiary will
receive the assets. |
Videotaped or oral wills are not valid, but there are
two statutory wills recognized by the State of California
that are. Both of those are fixed, pre-printed forms that
require two or more witnesses to be valid.
California law permits you to leave your assets to anyone
you want. While many countries and states have restrictions
that require at least a portion of the assets go to a
spouse, children, or other relatives, California does
not. A California will permits the creator to disinherit
his or her spouse, children, or any other relatives and
leave the assets to anyone he or she wants.
Assets may be left to any individual, society, unincorporated
association, or corporation you wish. They may also
be left to government agencies, cities, counties, the
State of California, or any other state. Assets may
be left to the federal government, any foreign government,
or to any political subdivision. The one exclusion is
animals. You cannot leave your assets to your dog or
cat and, if you do, the court will convert this to trust
to take care of the pet until it dies.
The following assets have their disposition controlled by
a will:
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1. All property of a married person that was held separately,
in his or her name alone. This would include assets held
before the marriage, or acquired during the marriage by
gift or inheritance.
2. All assets held only in the decedent's name if the
person was unmarried at the time of death.
3. One-half of each asset that was held in both husband
and wife's names as community property.
4. The portion of all assets the decedent owned that were
registered with other people or organizations as tenants
in common.
5. Assets that were owned, but not registered. This would
include physical assets such as jewelry, heirlooms, furniture,
and the like. |
For additional information, please contact THE MAMOLA LAW FIRM at (800) 440-5294.
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| CAUTION: This website is to provide visitors with basic information.
Every legal situation is different, and no information on this website
is to be construed as legal advice on any specific question. Additionally,
the information on this website is for informational purposes, no
warranty is made as to the accuracy of any information contained therein,
or its applicability to any particular situation. This website must
not be used as a substitute for legal advice from qualified lawyer
or legal counsel. No attorney & client relationship or privilege
is formed by visiting this site or by sending my office any unsolicited
e-mail. Therefore, initial emails must not contain any confidential
information. I may already represent parties adverse to you and cannot
advise or represent you until I check for conflicts. I am licensed
only in California, and may offer my services only to those residing
or doing business in California, unless associated with local counsel
or lawyer in accordance with other states' laws.
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