Who can be the beneficiary of a Will?
Anyone can be the beneficiary of a Will.
However, if the beneficiary is a resident of a foreign country, there may be issues with treaties - or the lack of them - between the United States and the other country.
Charities can also be beneficiaries of a Will. So can pets.
What is a beneficiary?
A beneficiary is a person (or thing) who gets something from a Will or Trust. You are a beneficiary of the Will if the author of the Will (aka, the testator) instructs that some of his/her property be given to you.
Who are the heirs?
The heirs are the people who are entitled to get the decedent's (the person who died) property according to state law if the decedent had not written a Will. Most frequently, this includes the decedent's surviving spouse and children. However, just because you are an heir does not mean that you also will be a beneficiary.
Does my loved one have to probate my Will?
Possibly... If you have written only a Will and your property is worth more than $150,000 and you are not leaving everything to your surviving spouse, your loved one will very likely need to open a probate case. The property in probate will also determine the amount of attorney's fees and executor commissions that the estate will pay during probate.
What are the probate fees in California?
Per CA Probate Code §10810, the maximum fees allowed are:
4% of the first $100,000
3% of the next $100,000
2% of the next $800,000
1% of the next $9,000,000
0.5% of the next $15,000,000
Please note that the cost of the executor's commission is same as the attorney's fees – so the dollar amount calculated above needs to be multiplied by two. In addition, the value of the property is determined without taking any liens into consideration.
For example, if your estate has a value of $1,800,000, the probate fees will total $62,000. Here is the calculation:
$ 4,000 (4% of the 1st $100k)
$ 3,000 (3% of the next $100k)
$16,000 (2% of the next $800k)
$ 8,000 (1% of the next $9 mill)
$31,000 for Attorney's fees
$31,000 for Executor's commission
grand total of $62,000
Of course, these fees do not include other costs that are incurred in probate, such as filing fees, publication costs, sales commissions, and so on.
Fortunately, probate can be avoided if your property is in a Trust. If you would like to start a conversation about avoiding probate, please contact me. You can reach me by using the form on this page; calling; or by scheduling an appointment for us to speak by clicking on "Schedule an Appointment."
Who can write a Will?
Anyone over age 18 and who is mentally competent ("of sound mind") can write a Will. Cal. Probate Code 6100(a).
How do you know if someone is mentally competent to write a Will?
You are mentally competent in California if you are capable of (1) understanding that you are creating a will that disposes of your property upon your death; (2) that you understand what your property is and where it is; and (3) that you understand the relationships with your heirs and beneficiaries. This means that you know what the consequences will be depending on how you leave your property. Cal. Probate Code 6100.5(a).
Plus a conservator, with court approval, can also write a Will for their conservatee. In addition, a mentally competent conservatee, over age 18, can write their own will (and revoke or revise the one their conservator wrote for them). Cal. Probate Code 6100(b).
Does a Will have to be in a certain format?
No, it just needs to show you intend to give the beneficiary something at your death. The Will can be a formal Will, signed and witnessed by two people, and is usually written by an attorney.
You can use a "form will" such as those that you can buy online. Also, the California Bar Association has created a copy of California's Statutory Will, which is a free, do-it-yourself will. The form instructions need to be followed carefully and then you sign it in front of two witnesses.
California even allows informal, handwritten wills - they are referred to as Holographic Wills.
Could a single sheet of paper be a Will?
Yes. It could be a Holographic Will. These informal Wills must be made entirely in the decedent's handwriting and they do not need to be witnessed (or even dated). Cal. Probate Code 6111.