Estate Planning / Probate

We can help with information about:

• Probate
• Wills: What is a Will?
• Trusts: What is a Trust?
• Power of Attorney
• Guardianship
• Conservatorship

What is a Will?                     Back to the top

From California State Bar, consumer information pamphlet

A will is a traditional legal document in which you identify those individuals (or institutions) who (or which) will receive your property and possessions upon your death. These individuals and institutions are commonly referred to as beneficiaries. In a will, you appoint or name an executor, who may be an individual or an institution. After your death, your executor will manage your affairs and will insure that your property is distributed in accordance with the provisions of your will. In a will, you also may name the guardians of the person or estate of your minor children, make specific gifts to individuals or charities and even include burial instructions.

The State Bar has published a pamphlet entitled "Do I Need A Will?" which provides more detailed information about wills. You may obtain a free copy of the pamphlet from the state bar.

For some people, a California Statutory Will may be appropriate. The California Statutory Will is a fill-in-the-blank form which can be used by any California resident competent to make a will. You can order a California Statutory Will form by sending a check or money order for $2.00 per form to: Will Forms, State Bar of California, P.O. Box 420411, San Francisco, California 94142-041 1.

Regardless of whether you use a California Statutory Will or a lawyer-prepared will, you must execute your will In the manner required by law. Failure to execute or follow out the instructions of your will in a proper manner may invalidate your entire will. You should discuss the requirements of properly executing your will with your attorney.

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What is a Living Trust?                     Back to the top

From California State Bar, consumer information pamphlet

A revocable inter vivos trust is also commonly referred to as a revocable living trust or a living trust. A revocable living trust may be amended or totally revoked at any time during your lifetime, as long as you remain competent.

A trust is a written agreement between the individual creating the trust (commonly known as a "trustor," "grantor" or "settlor") and the person or institution who is to manage the assets held in the trust (commonly known as the "trustee". The trustee may be either an individual or a bank or trust company; for a bank or trust company to act as a trustee, the institution must be licensed by the State of California. For many individuals, it will be appropriate for the settler to be the initial trustee of a revocable living trust.

You create a trust by executing a written agreement. In the written agreement, you give the trustee the legal right to manage or control your property; identify the persons or institutions ("beneficiaries") who are to receive income or principal; and, set forth the provisions which will guide the trustee in the management and distribution of the trust property.

The trustee is a fiduciary, a person who occupies a position of trust and confidence, and is subject to strict fiduciary responsibilities. Usually, a fiduciary is held to higher standards of performance than is a person or institution who or which is not a fiduciary. Without the settlor's express written permission, the trustee cannot use trust property for his/her own personal use, benefit or self-interest, but must hold the trust property solely for the benefit of the beneficiaries of the trust.

Often the major purpose of a revocable living trust is to avoid probate. With only a few limited exceptions, title to all of a settlor. s assets must be transferred to the trustee of the revocable living trust to avoid probate. For example, a deed is used to transfer title to real property from the settler to the trustee. One exception to the general transfer rule is that probate still will be avoided even though certain assets with a value of $100,000 or less are not transferred to the trustee. Other assets, such as those that are held in joint tenancy or which could pass by beneficiary designation, do not have to be transferred to the trustee to avoid probate. There can be some disadvantages to transferring such assets to a revocable living trust.

A few Living Trust benefits:

Legally saves on taxes:

As of 2001, married couples with a living trust can protect $1.35 million from IRS estate taxes instead of just $675,000 without a trust. This represents a savings of over $270,250 In taxes.

Ultimately the estate tax exemption will reach $1 million per person by 2006. This allows up to $2 million worth of protection in a living trust for married couples.

A. Special Needs Heir: If a child or other heir is incapable of handling their financial affairs due to physical or mental disability, a trust protects them by allowing the grantor to designate funds as desired for the Special Needs Beneficiary with a structure to make sure these funds pay for those heirs needs.

B. Spendthrifts: If an heir is a spendthrift, a trust may be used to insure only enough money is granted each month/week to the heir for his/her necessities.

C. Privacy: Terms of a trust are not public knowledge, unlike a will going through probate.