Familiarize Yourself With The Most Common Types of Wills
It may surprise you to know that a will is not just a written document stipulating how one’s assets are to be distributed upon one’s passing. Determining which type of will you wish to draft depends both on your wishes and the laws that reflect wills and probate in your state.
Also known as a simple will, these types of documents will best serve those who own small estates. The state where the testator resides can provide a simple form that the person drafting the document can easily fill out. However, not all states recognize statutory wills. Be sure to consult an attorney familiar with the processes of formulating such documents to determine if a statutory will is legally binding in your state.
This type of will stipulates that a portion of your estate will be placed into a trust. Trusts work by distributing the assets of the testator to a beneficiary and the assets may be administered by a third party. The administrator of the trust will gradually distribute the assets listed therein to the beneficiary. However, it is also possible for the testator and the trust administrator to be the same person.
As the name implies, joint wills are formulated by two testators. They work by distributing shared assets to the testator who outlives the other. These types of wills are popular among married couples, as the surviving spouse is listed as the sole beneficiary. This type of will is strict in that it may be amended at any time while the two testators are alive but becomes final and irrevocable upon the death of one of them.
This type of will is perhaps the most unique. Living wills do not distribute assets after the passing of a testator. Instead, the form documents what is to become of the testator if he/she becomes too ill or incapacitated to communicate. For example, if a testator is involved in a serious car wreck and is on life support, the will may stipulate his/her wishes to be removed from life-preserving machinery if such a situation ever arises.
No matter which type of will you wish to formulate as part of your estate plan, do so with the assistance of an attorney from Fischer & Van Thiel, LLP, by contacting 858-935-6211.
Mike's Top FAQs About Estate Planning401K plans and divorce
401K plans and divorce
If my spouse waives his right to my 401k plan, is there any circumstance that the court will still award him half or a portion of my 401k plan?
It is theoretically possible that a court can disturb an agreement to waive rights to property, but it is unlikely. Courts will generally treat agreements as contracts, and thus are likely to strike an agreement only if it is unconscionable, induced by fraud, undue influence, duress or is against public policy. The judge cannot “reject,” nullify, or modify the provisions of an agreement merely because of his or her personal belief that a different arrangement should be made.
A marital settlement agreement, or MSA, can be used as a contract between spouses regarding the division of property that would otherwise be subject to community property laws. An MSA is subject to general contract laws, meaning that it can be found invalid if terms are against public policy (which includes, but is not limited to, (a) abrogating the statutory child support duty or impinging on the court’s jurisdiction to award child support, (b) limiting the court’s exercise of child custody jurisdiction, (c) “altering legal relations,” (d) “promoting dissolution,” and (e) providing for “fault”-based penalties at marriage dissolution) . The MSA can also be found invalid if entered into as a result of fraud, duress, menace, undue influence, or other factors which may make the agreement void or invalid. Generally, an agreement such as the MSA is favored. Hence, if there are no legal or equitable grounds for rescission or reformation it is binding on the parties and the court without express approval.
Can I get child support in California if I am not getting a divorce?
I have been separated for two years from my wife, and my kids live with me. Can I get support without filing for divorce in California? We have not been living together since our separation, and even file taxes separately.
You do not need to file for divorce in order to get support. You will need to go through the court to obtain a child support order so you will have to file something. You can contact your local Department of Child support services office and they can help you get started. So while you do not have to file for divorce, you can file for a legal separation. The court needs to know that you two have in fact separated and there is one parent who is the full time provides and therefore in need of support.
Can I move out with my daughter before the divorce in California?
My wife and I are going to divorce, but we have not filed yet. We are always fighting, and my daughter, who is 7, is very stressed with the way we are living. Can I move out with her, if I do not move far away and let him see her all the time? He is not happy with my choice. Is this legal?
Yes, you can move out with your daughter, assuming there are no court orders already in place regarding custody and visitation. It is important to maintain frequent and continuing contact between the child and the other parent. When the court makes custody and visitation orders they will look highly upon the parent who facilitated contact with the child and the other parent. It is important to make the transition as easy as possible for the child.
Question: Is there a statute of limitations on owed child support?
An ex lover of mine (20 years ago) just approached me out of nowhere about getting tested to see if her son is my child. He is 20 and I live in California. I am trying to find the statue of limitations for child support if indeed I take the test and the child turns out to be mine.
Unless the mother has made a claim for child support with the welfare office or her local Department of child support services office, they cannot now collect from you on child support. Since he is no longer a minor child now that he is emancipated, there are no obligations for child support. You can get tested to see if you are the father, but you do not have to.
If the state has paid out welfare for the child, and it turns out that you are the Father, there can be some potential liability there with having to pay back the state the money they paid out. If this is not an issue, then they cannot now ask you to pay for child support.
Is the opinion of the child ever taken into consideration in a divorce?
Typically the Courts will take the child’s opinion into consideration at the age of 12. There is no set age, it depends on the maturity level of the child. If a child is of sufficient age and capacity to form an intelligent preference to custody the court can take it into consideration. It is important to note that all judges will rule for what is in the child’s best interests whether it be for the mother or the father.