We are addressing the basics here, so let's start with the will. In California, which is a trust jurisdiction, we generally advise clients to create a trust with a pour-over will. For those with smaller estates who think they do not need trusts, we see even greater reasons why trusts --and not wills -- are the way to proceed. Some of our clients have existing wills created years ago which are reviewed when we're creating a comprehensive estate plan.
The Body of a Will
Most of the formalities of a will come at the beginning of the will and at the end of the will. The initial clauses usually announce the intention of the testator to make a will. The closing clauses usually indicate that the will has been signed and witnessed as required. In between the initial clauses and the closing clauses is the body of a will. The body of the will is where the testator directs the disposition of his or her estate.
Receiving Property Under a Will. In most states, a document is not a will unless it disposes of some property. Accordingly, the body of a will must dispose of at least some property. To avoid claims that the testator lacked the intent, capacity, or freedom to make a will, the body of a will should dispose of all property not otherwise disposed.
The testator must first pay the debts of his or her estate. What remains is the testator's net estate. A beneficiary is a person who receives property by from a testator's net estate. A gift is an intentional transfer of property from a person's generosity. A testator's direction to transfer property from his or her net estate to a beneficiary is a gift.
Testamentary Gifts A testamentary gift is a gift in a will. Traditionally, a gift of real property in a will is known as a devise. Traditionally, a gift of money in a will is known as a legacy. Traditionally, a gift of personal property other than money in a will is known as a bequest.
Today, any gift of personal property may be known as bequest or legacy. Today, it is generally said that a testator devises real property to a devisee and bequeaths personal property to a legatee. In each case, the testator gives or leaves property to a beneficiary.
A will may leave specific real property to a specific beneficiary. Each specific gift of real property is known as a specific devise. A will may leave specific personal property to a specific beneficiary.
Each specific gift of personal property is known as a specific bequest or specific legacy. A will may leave money from a specific fund to a specific beneficiary. Each amount of money from a specific fund is known as a demonstrative legacy. A will may leave money from the general assets of the estate to a specific beneficiary. Each amount of money from the general assets of the estate is known as a general legacy.
After all specific gifts, if any, are made, a will can and should contain a residuary clause. A residuary clause gives away any property remaining in the testator's estate. A residuary clause makes a residuary gift. Traditionally, any remaining personal property was known as the residue of the estate. Traditionally, any remaining real property was known as the remainder of the estate. Today, the words 'residue' and 'remainder' are used interchangeably. If there is no residuary clause, any property remaining in the testator's estate is disposed of by intestate succession (as if the testator died without a will).
A will may also contain provisions for a trust. As a general rule, a devise, a bequest, a legacy, or a trust in a will may benefit any person or legal entity, unless the gift violates public policy or a condition imposed by the testator is not met.
These are basic concepts and future posts will address the nuances of estate, trust and tax planning. If you have a will and have questions regarding it and whether you should instead create a trust with a pour-over will, please contact us.
Posted by Henry J. Moravec, III. Henry (Hank) Moravec is a partner at Moravecs, A Professional Law Corporation. He focuses his practice on Estate Planning, Trust and Probate Administration, Beneficiary and Trustee Representation, Tax Law, and Nonprofit Law.
You can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210 to request a consultation should you need legal advice regarding your own situation. The firm website is http://www.moravecslaw.com/. The firm is located at 2233 Huntington Drive, Suite 17, San Marino, California 91108.
He has over 20 years' experience as one of the most prominent and best Los Angeles estate and trust attorneys, Los Angeles will attorneys, and Los Angeles probate attorneys. Hank's practice is throughout Los Angeles County and Southern California, but since his office is in San Marino he has also become a well-known Pasadena probate attorney, Pasadena will attorney, Pasadena estate attorney and Pasadena trust attorney.
