Estate Planning 101

By Ronald W. Lyster

WILLS

A Will is a writing by which a person (called a testator) determines who gets his property at his death. Absent a contract to make a Will (a "Will contract"), a Will is always subject to change until the testator's death. These days Will contracts are very unusual and a contract limiting your freedom to make a Will should never be entered into without careful analysis. If a person dies without a Will, they forfeit the right to determine the disposition of their property. In that case, disposition of their property is determined by the laws of succession and intestacy. If one dies in California without a Will, the California laws of succession determine who will inherit the property and in what proportions one's property will be distributed. The properties disposed of by a Will, or by the laws of succession, are only one's separate property and one-half of any community property.

One of the advantages of making a Will, beyond determining the disposition of property, is that property may be placed in trust for a beneficiary rather than giving the property to that person outright. For example, in the case of minor children, the state would appoint a guardian for any property left outright to the child. A guardianship is a state imposed administration of a minor's property to safeguard the minor's rights. A guardianship can be cumbersome and expensive. The minor's money can only be invested in authorized investments and expenditures are greatly regulated. The guardian may have to go to court and petition a judge before spending money, whereas a trustee in the same situation could use his trustee's powers without the need of a court order.

A trust set up in a Will, however, avoids the necessity of this guardianship. The testator can prescribe in his Will for a trust with his own rules for management of the trust funds and for how and what purposes the money is to be spent and who is to be the trustee. Moreover, the trust can continue beyond the age at which the minor reaches majority.