Wills & Trusts
A last will and testament (more commonly known as a will) can help protect your family and your property. A will can be used to:
- leave your property to people (or organizations)
- name a trusted person to manage property left to minor children
- name a personal guardian to care for your minor children, and
- name an executor, the person entrusted with carrying out the terms of your will.
What happens if I don’t have a will?
Should you die without a will, state “intestacy” laws will dictate how your property will be distributed. California’s intestacy law gives your property to your closest relatives, beginning with your spouse and children. In the absence of a spouse or children, your grandchildren or your parents will get your property. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, cousins, and your spouse’s relatives. If the court exhausts this list to find that you have no living relatives by blood or marriage, the state will take your property.
Do I need a lawyer to make a will?
You may, however, want to consult a lawyer in some situations; for example, if you suspect your will might be contested or if you want to disinherit your spouse or a child or aren’t sure if you have other heirs who may come back and contest the will, you should talk with an attorney
A trust is an arrangement under which one person, called a trustee, holds legal title to property for another person, called a beneficiary. You can be the trustee of your own living trust, keeping full control over all property held in trust.
A “living trust” (also called an “inter vivos” trust) is simply a trust you create while you’re alive, rather than one that is created at your death.
Different kinds of living trusts can help you avoid probate, reduce estate taxes, or set up long-term property management. For more details and a free initial consultation call The Elder Law Legal Group, P.C. at 866-386-4135.
Why should I make a living trust?
The big advantage to making a living trust is that property left through the trust doesn’t have to go through through probate court. In a nutshell, probate is the court-supervised process of paying your debts and distributing your property to the people who inherit it.
The average probate drags on for months before the inheritors get anything. And by that time, there’s less for them to get: In many cases, about 5% of the property has been eaten up by lawyer and court fees.
Still, not everyone has to worry about probate, and some people don’t need a living trust at all.
How does a living trust avoid probate?
Property you transfer into a living trust before your death doesn’t go through probate. The successor trustee — the person you appoint to handle the trust after your death — simply transfers ownership to the beneficiaries you named in the trust. In many cases, the whole process takes only a few weeks, and when all of the property has been transferred to the beneficiaries, the living trust ceases to exist.
12 Point checklist care of your family by making a will, power of attorney, living will, fal arrangements, and more.
- Make a will.
In a will, you state who you want to inherit your property and name a guardian to care for your young children should something happen to you and the other parent. For more information, call 866-386-4153.
- Consider a trust.
If you hold your property in a living trust, your survivors won’t have to go through probate court, a time-consuming and expensive process.
- Make health care directives.
Writing out your wishes for health care can protect you if you become unable to make medical decisions for yourself. Health care directives include a health care declaration (“living will”) and a power of attorney for health care, which gives someone you choose the power to make decisions if you can’t. (In some states, these documents are combined into one, called an advance health care directive.) For more information, consult The Elder Law Legal Group, P.C..
- Make a financial power of attorney.
With a durable power of attorney for finances, you can give a trusted person authority to handle your finances and property if you become incapacitated and unable to handle your own affairs. The person you name to handle your finances is called your agent or attorney-in-fact (but doesn’t have to be an attorney).
- Protect your children’s property.
You should name an adult to manage any money and property your minor children may inherit from you. This can be the same person as the personal guardian you name in your will.
- File beneficiary forms.
Naming a beneficiary for bank accounts and retirement plans makes the account automatically “payable on death” to your beneficiary and allows the funds to skip the probate process. Likewise, in almost all states, you can register your stocks, bonds, or brokerage accounts to transfer to your beneficiary upon your death.
- Consider life insurance.
If you have young children or own a house, or you may owe significant debts or estate taxes when you die, life insurance may be a good idea.
- Understand estate taxes.
If you and your spouse together own assets worth at least $1.5 million, you may want to consider taking steps to reduce federal estate tax that will be due at the second spouse’s death. You may want to make tax-free gifts now or consider an AB trust.
- Cover funeral expenses.
Rather than a funeral prepayment plan, which may be unreliable, you can set up a payable-on-death account at your bank and deposit funds into it to pay for your funeral and related expenses.
- Make final arrangements.
Make your wishes known regarding organ and body donation and disposition of your body — burial or cremation.
- Protect your business.
If you’re the sole owner of a business, you should have a succession plan. If you own a business with others, you should have a buyout agreement.
- Store your documents.
Your attorney-in-fact and/or your executor (the person you choose in your will to administer your property after you die) may need access to the following documents:
- insurance policies
- real estate deeds
- certificates for stocks, bonds, annuities
- information on bank accounts, mutual funds, and safe deposit boxes
- information on retirement plans, 401(k) accounts, or IRAs
- information on debts: credit cards, mortgages and loans, utilities, and unpaid taxes
- information on Totten trusts or funeral prepayment plans, and any final arrangements instructions you have made.
For more information and a free consultation call the The Elder Law Legal Group, P.C. at 866-386-4135 or complete the client contact form.