Last Wills & Living Wills in El Cajon
Creating a last will and testament, living will, and other documents that comprise an estate plan can be challenging to do, and not just from a legal perspective; spelling out one’s wishes for assets, medical care, and more can feel like planning for one’s death, something that no one wants to think about. But while you may not want to think about estate planning documents, doing so can provide you with comfort and peace of mind in knowing that everything’s in order, your loved ones will be provided for, and things will be carried out per your wishes should something happen to you.
At the offices of Garmo & Garmo, Attorneys at Law, LLP, the last will and testament, and the living will, are two of the most important documents in an estate plan. If you are unsure what either is or have not yet created these documents as part of your own estate plan, we can help.
What’s a Last Will and Testament?
A last will and testament is that document that you’re probably thinking of when you think of a will – last wills and testaments are used to spell out one’s wishes for the division of property and assets at the time of their death. Wills are also used to name an estate administration (who will be responsible for distributing the estate and managing the probate process), outlining desires for how any debts and liabilities should be handled, giving money to charity, naming who should receive certain pieces of property (such as jewelry or family heirlooms), and even naming a guardian for any minor children that an individual or couple has.
As explained by the State Bar of California, a will does not cover everything you own, and therefore creating other estate planning documents that do address other elements of your estate is advised. To be sure, a will generally only covers assets that are titled in your name at the time of death and for which there is no designated beneficiary. Common assets that will not be affected by your will include:
- Retirement plans;
- Assets owned in joint tenancy (such as a home);
- Transfer-on-death accounts;
- Living trusts; and
- Life insurance policies.
The Advantages of Creating a Will
Creating a will serves the person creating it (known as the testator), the person who is responsible for distributing assets and paying debts at the time of the testator’s death (the executor of the estate), and the decedent’s family and beneficiaries. The testator will benefit from peace of mind in knowing that their wishes will be carried out upon their death, that their debts will be paid in the manner that they recommend, and that their assets will be distributed to heirs, beneficiaries, charities, and any others per their desires. There is great comfort in knowing that one’s loved ones will be provided for.
The executor of the estate benefits by receiving clear and precise instructions about how to distribute assets, who will get what, how creditors should be paid, etc. This can make the probate process much easier to navigate and may help to mitigate any disputes that would arise in the event that the decedent did not have a will.
For family members and beneficiaries, knowing that there is a valid will in place is also a comfort. Attempting to figure out a deceased loved one’s wishes without such guidance can be emotional and contentious for family members.
What Happens if You Don’t Have a Will
One of the most important things to think about if you don’t have a will and aren’t keen on creating one is what will happen to your estate if you die without a will. If you die without a will, which is legally referred to as dying intestate, the state of California will be responsible for determining what happens to your assets and how assets are divided amongst your beneficiaries. If you die without any living relatives, the state will be the beneficiary of your estate. Here’s how it breaks down:
If you die with:.
- Children, but no spouse, your children will inherit everything;
- A spouse, but no children, siblings, or parents, your spouse will inherit everything;
- A spouse and one child your spouse will inherit 100 percent of your community property and half of your separate property;
- A spouse and two children, your spouse will inherit all of your community property and one-third of your separate property; and
- A spouse and living parents, your spouse will inherit all of your community property and half of your separate property.
For situations in which the above criteria do not apply (e.g., a situation in which a person dies with a spouse and siblings, but no parents, or a spouse and a grandchild) see California code or talk to an attorney.
Understanding Living Wills
While both legal documents may share the word “will” as part of their name, living wills and last wills and testaments are completely different legal documents, although both have a great deal of importance when thinking about an estate plan. A living will is a document that details your wishes for healthcare in the event that you suffer from a condition or accident that prevents you from being able to express your wishes yourself. When paired with a power of attorney–which names a person who will be responsible for making decisions about your healthcare if you are unable to do so–these two documents are called an advance healthcare directive.
Specifically, living wills are used to address life-prolonging treatment. Indeed, language regarding the creation of living wills is found in California Probate Code and explains that a living will can be used for an adult to make decisions about whether or not to have “life-sustaining treatment withheld or withdrawn.” Life-prolonging treatments that may be addressed in the will include, but are not limited to: surgeries, kidney dialysis, blood transfusions, resuscitation, use of a respirator, use of feeding tubes, and more.
You may have very strong feelings about whether all means necessary are used to prolong your life. It is important that you create a living will to express this.
The Importance of Both in an Estate Plan
As explained, living wills and last wills and testaments are very different legal documents. However, both are important, regardless of your age, income or asset level, or family size. Both documents are used to express critical preferences about the end of your life or what will become of your property when you’re gone, and without these documents, family members may be unsure of what you would choose for yourself. What’s more, the failure to have these documents as part of your estate plan could lead to controversy and discord amongst family members, who disagree about your wishes and how healthcare matters and the division of your estate should be handled.
Not only do these documents serve to mitigate potential disputes between family members, but also to provide you with peace of mind. There is a sense of comfort in knowing that your minor child will be placed with someone you trust should you experience an unexpected death, or that your spouse will be provided for when you die. Knowing that you will receive the healthcare treatment that you want if you are incapacitated and unable to express your wishes is also reassuring.
Our Experienced Estate Planning Attorneys Can Assist You
If you haven’t creating a living will or last will and testament in California, now is the time to do so. You never know when a serious accident or illness could befall you – preparing for the unexpected is highly advised. What’s more, you can change your estate planning documents in the future should you experience a change of heart, financial change, etc.
To learn more about the creation of estate planning documents or to begin creating your wills today, call the estate planning attorneys at Garmo & Garmo, Attorneys at Law, LLP for the information you’re looking for, and the legal support you need. You can reach us by phone at 619-441-2500, by sending us a message explaining the reason you want to be contacted, or even stopping by our office in El Cajon at your convenience.
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