Will Writing For Broke People
This is not legal advice. It consists largely of my notes from a conversation with the Berkeley Attorney for Students, who also wasn’t offering legal advice.
When you die, there are standard procedures for dealing with many of your possessions. In particular, bank accounts, investments, and the like can have a Pay-on-Death (POD) beneficiary designated. This person just has to contact the bank or investment firm with ID and a copy of your death certificate and can rapidly take possession of the asset. Each bank and firm has a slightly different procedure for doing this, but it’s not difficult. You fill out a form. (In California, and possibly in other states, you can do this for cars as well.)
Some large assets, however, aren’t managed by firms. The big one is real estate. While you can just co-own your real estate with your intended inheritors, the most reliable thing to do is to create a living trust. (This is just a trust you create while you’re alive.) You transfer the property to the trust, and then you can specify that control over the trust passes to someone else in the event of your death. That way, when you die, there’s no need to transfer the deed to the house, since technically the ownership of the house hasn’t changed.
Before I started looking into this, I was under the impression that, whatever happened when someone died, you had to go to probate court. This is not the case. If your assets have a clear, uncontested means of transfer to a living person when you die, they don’t go through probate. That’s usually a good thing: probate is slow, and it can take a not insignificant chunk of the assets as a fee. Living trusts and POD beneficiary arrangements both sidestep probate entirely.
However, sometimes you may forget to put some important asset in trust, or otherwise wind up with something for which you can’t easily arrange. For this reason, you also want a traditional will. You don’t have to list your possessions; you just have to choose some people to whom you want your estate to go, and get some witnesses to sign it. Some states need wills to be notarized too, while most don’t, but it couldn’t hurt. Most banks will provide notary services for free. California provides a basic statutory will form that you can find online. You don’t register wills with anyone in the government. Part of the job of the witnesses is to confirm to the probate court that they’re valid, if that becomes necessary.
In short, the process goes like this:
- You choose someone to get your estate.
- You write a will, saying that they get your estate. They’re probably a good choice for executor too.
- You get the will signed by two witnesses and notarized, and you send your executor a copy.
- You designate POD beneficiaries for all your accounts, in line with what you laid out in the will.
- You put any property or other big assets that don’t let you designate POD beneficiaries into a living trust.
- You die.
- Your executor shows up at various banks and so on with the will. Since it’s in line with their POD beneficiary records, they can give them the assets right away.
You may also want to write a living will. This has nothing to do with property at all, and it’s more properly called an advance health care directive. It’s a document explaining how you’d like to be treated in the event of a medical emergency that leaves you unable to make your own medical decisions. You can delegate that authority to other people, or leave guidance of your own. California has a registry for these things; other states might as well.