As a bankruptcy attorney, I have been helping my clients protect their assets for decades. As an estate planning attorney, by creating personalized estate plans that convey my client's wishes, I help make sure those same assets can be protected for their beloved family and friends.
A will is a testamentary instrument that conveys a person's wishes for distribution of their assets upon their death. Wills have very special requirements to ensure they will be deemed valid and held up by the probate court. Assets disposed of through a will must go through a probate process. If assets are of a minimal value, the estate can likely be deemed a “small estate” and expensive probate fees (as well as a complicated probate process) can be avoided. Note that many assets do not go through the probate process. Certain assets, such as insurance policies, retirement accounts, and pay-on-death bank accounts, have their own way of reaching a persons heirs and are considered “outside probate”. I prepare wills for my clients who have small to medium sized estates.
In some situations it is better to have a trust than a will, particularly when there are real estate assets involved. There are many types of trusts, but the most distinguishing factor about a trust from it's distant cousin, the will, is that assets distributed by a trust do not go through probate. This can potentially save the heirs a lot of time and money. Also, the nature of a trust enables the creator of the trust (called the “Trustee”) to set forth conditions for the management, use, sale and/or distribution of their assets in a way that is more specific than can be done in a will. Note that many wills have trusts built into them, for example, when there are minor children who are beneficiaries. In a revocable living trust, the creator, who is the “Trustee” during their lifetime, names a “Successor Trustee” to take over upon their death and follow their wishes with regard to management and distribution of the the trust assets I prepare revocable living trusts for my clients according to their wishes in situations where it is a better fit for them than a will.
Everyone should have either a will or trust, regardless of the size of your estate. It's the only way to ensure your personal wishes can be carried out after your death. If you die without a will, the State will divide your probatable assets according to the following order of distribution, and you will have no control over it:
Many years ago, while I was in law school, I learned a simple mneumonic (memory retention device) for the rules of estate succession in California, in other word, what happens to your property if you die unmarried without a will.
Here is the mneumonic: I PIG IN PIE
It stands for this:
Issue (your children)
Issue of parents (your brothers and sisters)
Issue of grandparents (your aunts and uncles)
Next of kin
Parents of next of kin
Issue of next of kin
Escheats to the State
That's the bare-bones basics. To further elaborate:
If you die with children but no spouse, the children inherit everything.
If you die with a spouse but no children, no parents, no siblings and no nieces or nephews, your spouse will inherit everything.
If you die with parents but no spouse, no children, and no siblings, your parents inherit everything.
If you die with siblings but no parents, spouse or children, your siblings inherit everything
If you die with a spouse and one child or grandchild, your spouse inherits all of your community property and 1/2 of your separate property.
If you die with a spouse and two or more children, your spouse inherits all of your community property and 1/3 of your separate property, and your children inherit 2/3 of your separate property
If you die with a spouse and one child and one or more grandchildren from a deceased child, your spouse will inherit all of your community property and 1/3 of your separate property, and the children inherit 2/3 of your separate property.
If you die with a spouse and parents, your spouse will inherit all of your community property and 1/2 of your separate property, and your parents inherit half of your separate property.
If you die with a spouse, siblings and no parents, your spouse will inherit all of your community property and 1/2 of your separate property and your siblings inherit half of your separate property.
Note that things are far more complex than this. For example, what is community property and what is separate property is a whole subject in and of itself. Also, who can be legally deemed your child, that's another complicated issue.
If you die with no family, then your property "escheats" to the State, meaning the State gets everything! But most people have some distant relative somewhere so this rarely happens. Regardless, it's best to have a will or a trust, and I can help you with that!