When is an Estate Plan Necessary? Pt 1

when_an_estate_plan_is_neededWhen is an Estate Plan Necessary? Any time YOU want to have any sort of say in what happens to your estate! When I give seminars I am frequently asked: “When should I do a trust or a will?” and “Is an Estate Plan necessary?”

The bottom-line question is this: “What happens if I do not plan?”

Well, the short answer is, “it’s not pretty!”  When a person becomes incapacitated, or dies without a complete plan in place, the California Probate Code fills any vacuum.  In other words, if you do not write your estate plan, then the state does! The following is the first portion of an example of what you can expect the state to draft, should you NOT opt to write your own will and estate plan:

Last Will and Testament
Sample of a typical state-drafted Will – Part 1

Decedent had separate property – perhaps from before marriage or as an inheritance.

Being of sound mind and memory, I do hereby publish this as my last will and testament:

FIRST, although my widow will need all of the financial help she can get, I give her only one-third of my possessions; I give my minor children the remaining two-thirds

SECOND, I appoint my widow as guardian of our children.  But as a safeguard – despite my utmost confidence in her judgment, I require that she apply to the probate court for letters of Guardianship and then report to the probate court each year to render an accounting of how, why and where she spent the money for proper care of her children.

(A)    I require my widow to explain to the Court why she should be able to spend the children’s money for their care since she has a duty under the law to support them;

(B)    As a further safeguard I direct her to spend the necessary time and money to obtain a Performance Bond to guarantee to the Probate Court that she will exercise proper judgment in handling, investing and spending the children’s money.

(C)    As a final safeguard – despite my desire to free my widow from undue burdens and potential harassments – when our children become of legal age, I give them the right to demand an accounting and to second-guess her decisions.

(D)   Although my children are not mature and do not appear to have any idea of how to manage money, I direct my widow to give them all of their inheritance at the age of eighteen.

The above text represents the FIRST portion of a will that the state would typically draft for a man who has separate property.  Separate property and community property are treated differently under California law.

Next month, Part 2 of this post will look at the remainder of a Sample Will generally written by the state in this instance.


estate_planning_living_trust_preparation_losgatos_Diane M. Brown, Esq.
Working every day to keep my clients out of court!
It’s your money… Let’s keep it that way!
Call 408.376.2755



This blog contains general information and is not meant to apply to a specific situation. Please seek advice of counsel before proceeding as each case is unique.

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