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What Is a Will?

Many people know they need a will, but not everyone knows what a will is or what it does

(One thing it will do is guarantee probate if you have a sufficient level of assets)

What a Will Does

Most people use a will to leave instructions about what should happen to their property after they die.   However, you can also use a will to

  • Name an executor.
  • Name guardians for children and their property.
  • Decide how debts and taxes will be paid.
  • Provide for pets.
  • Serve as a backup to a living trust.

You  shouldn’t  try to use a will to:

  • Put conditions on your gifts. (I give my house to Susan if she finishes college.)
  • Leave instructions for final arrangements.
  • Leave property for your pet.
  • Make arrangements for money or property that will be left another way. (Property in a trust or property for which you’ve named a pay-on-death beneficiary.)

What Are the Legal Requirements of a Will

There are very few legal requirements for wills.   To make a will in any U.S. state, you must:

  • Know what property you have and what it means to leave it to someone after your death.   Legally, this is called having "capacity" and it is also known as being “of sound mind.”
  • Create a document that names beneficiaries for at least some of your property.
  • Sign the document.
  • Have the document signed by two witnesses.

No state requires your will to be notarized, although you may use a notarized self-proving affidavit that will make your will easier to get through probate after your death.

A few states allow you to make a handwritten “holographic” wills, that don’t have to be signed by witnessed.   However, handwritten wills should only be used when you do not have time to make a formal will because they are much more susceptible to challenge after your death.

How to Write a Will

You can write a will yourself, or you can hire a lawyer to write one for you. If you write one yourself, you’ll want to find a good will template to help you.

There are no magic words that must be used to create a will.   The best advice for writing your own will is to find a good will writing tool to help you. It should help you use clear, unambiguous language to accurately describe your wishes.   It should also explain your options and help you decide what to include in your will.   For example,

  • Do you want to name several levels of executors?
  • Do you want to name more than one executor to work together?
  • Do you want to name guardians for your children or their property?
  • Do you want to create a trust for your children, so that they receive your property when their older than 18?

And a good will making template will help you know when you should see an estate planner for help writing your will. For example, you should talk to an estate planner if you:

  • Want to disinherit your spouse or child.
  • Are worried that someone might challenge your will.
  • Want to provide money and care for pets after your death.
  • Want to control what happens to your property long after your death.
  • Are worried about estate taxes.
transfer on death deed - 03ecropped

Transfer On Death Deed Package

Package Includes:

Instructions, Transfer Upon Death Deed, Will, Health Care Power of Attorney, Durable Financial  Power of Attorney, and HIPPA Authorizations

There are several ways an owner of real property can direct the transfer of real property when they die. Up until recently, the most common way was through a trust, will or owning the property in joint tenancy with another person or persons. Effective January 1, 2016, there is now a new way California allows real property to be transferred upon a person’s death and avoid probate.

Governor Jerry Brown signed Assembly Bill 139 which established a procedure to transfer real property upon death through a revocable transfer on death deed. This revocable transfer on death deed is a new simple and inexpensive way to transfer real property to a beneficiary in California. The deed allows a person to leave their real property to a designated person or persons such as a family member, friend, life-long partner or other loved one, without having to set up a living trust.

Criteria For Transfer on Death Deed (TOD Deed)

The new TOD (transfer on death) deed allows an owner of a residential real property to name one or more beneficiaries to receive the property when the owner dies, thus bypassing the need to probate the estate. There are some specific criteria, however, that a person should be aware of when considering recording a revocable transfer on death deed.

The real property must be a single family home or condominium unit, or a multiple residence building of not more than 4 residential dwelling units, or be a single family residence on no more than 40 acres of agricultural land.
A revocable TOD deed must be signed and dated before a notary public to be effective and valid. The transfer on death deed must be recorded within 60 days or less from the date it is signed. The transfer on death deed can be revoked by the transferor at any time.

A Transfer On Death Deed may be a great option for a person whose only asset is the home in which he or she lives.

Revoking a Transfer on Death Deed

There are three ways the transferor/owner can revoke a transfer on death deed.

The owner can record a formal notice of revocation.
A new transfer on death deed may be recorded.
The real property can be transferred to someone else prior to the transferor’s death.

Although the transfer on death deed must be recorded within 60 days or less from the date it is it signed and before the owner’s death, it is important to understand that the interest in the real estate only transfers when the owner dies. This means that the beneficiary identified on the TOD deed does not have any rights to the real property when the owner is alive. Furthermore, creditors of a named beneficiary cannot place any liens on the property. While the owner is living, the owner has the right to sell or encumber the property. The property is also subject to involuntary liens that may be recorded by creditors of the owner which would transfer with the property to the beneficiary upon the owner’s death.

In theory, a person that owns real property in California could execute and record more than one revocable transfer on death deed. The new law provides that the deed with the most recent recording date will be the one in effect.

Transfer on Death Deeds and Joint Tenancy

If you co-own the property as joint tenancy or community property with right of survivorship, the other owner automatically receives your share of the property upon your death. The TOD deed has no effect unless you outlive the other joint tenant. In this regard, co-owners may consider signing separate TOD deeds if they both want the same beneficiaries after both die. A better solution, however, would be to set up a living trust.

Downsides to a Transfer on Death Deed

If the person named in the deed as the transfer on death beneficiary dies before the real property owner does, the deed simply has no effect. This could result in the property having to be probated. If the owner becomes incapacitated through stoke, dementia, or another event, there may be no one to revoke the deed which may be necessary due to a change in family circumstances or the need to qualify the person for Medicaid assistance.

Copyright © 2018 Advanced Estate Design, LLC. We are not attorneys. We can provide you with self-help only. Sacramento County Legal Document Registration No. 2019-07; Expires on 2/28/2020.