This is the second part of the first post I made on marriage and estate planning, which can be found here: https://www.gundersen-law.com/single-post/2017/07/24/First-comes-love-then-comes-marriagethen-comes-an-estate-plan
Congratulations! You're married. You have started merging your life together with your spouse. Maybe you even have a few basic documents in place, such as an Advance Healthcare Directive and a Durable Power of Attorney. Later we will discuss what you need to complete your estate plan. But first let's discuss what happens if you never create one.
Leaving Your Planning to the State of California
If you die without a will, California law determines what will happen to your property. So, if you die without children, your spouse will get your share of community property. And if your parents, siblings, and nieces and nephews are dead (or you don't have any) your spouse will get all of your separate property too.
If you are married and have living children, grandchildren, parents, siblings or nieces and nephews, your spouse will still receive your share of the community property. Your separate property, however, will be divided between your spouse and your other family members. This is meant as an overview of intestate succession. I will discuss the intricacies of intestate succession in a separate post.
If you don't care who gets your property when you die, or you are happy with the results of intestate succession, then maybe you don't need a will. But I'm guessing you probably want some control over who gets your property, in which case, you need a will.
A will tells everyone who you want to receive your property after you die. You can give your property to whoever you want to through your will, as long as the property is subject to probate. This means that you can't use your will to name the beneficiaries of retirement accounts or life insurance policies. It also means that you cannot use a will to give away your share of real property held in joint tenancy or community property with rights of survivorship.
Just having a will does not keep your estate out of probate court. If you want to do that, read on.
A Pour-Over Will with a Revocable Living Trust
If you want to keep your estate out of probate court, you likely need a trust with a pour-over will. Essentially, you put all of your assets into the trust and have a pour-over will that catches anything left outside of the trust and "pours" it into the trust. If you keep the value of your estate subject to probate under $50,000 for real property and $150,000 total, your estate will avoid probate.
Of course, you don't need a trust, if you want to give thousands of dollars to attorneys and administrators, you don't mind everyone knowing what was in your estate, and you don't care if your heirs have to wait months to get their inheritance.