There exists much unnecessary confusion and anxiety around the Estate Planning process. While it can be complex, other than estates involving high net worth individuals and families, the process is generally not difficult, but the failure to plan your estate before you die lose the capacity to make your plan can have very adverse results. Our law firm offers a full range of estate planning services from simple estate plans for families to complex estates involving large business interests. We have over fifteen years experience preparing Wills, Living Trusts, Powers of Attorney for Assets and Healthcare and related documents.
The basic process is as follows:
- In California, if you die intestate (that’s legalese for dying without a will), the distribution of your assets (your house, cars, cash, personal possessions, stocks & bonds etc.) will be determined by California’s laws of intestate succession;
- Even if you make a will before you die that directs who will receive your assets, you will still have to go through a complex legal process in front of a Judge called “Probate” before the Court allows your assets to be passed down to your loved ones. (There is a “Small Estate Exception” if your probate assets are less than $150,000). Going through the Probate process requires hiring an attorney, numerous court filings and legal publications, time, court expenses and attorney fees. It also makes your will public record which means your file is available to anyone who wants to go to the courthouse and look it up. They can even get copies because it’s a public record by law. This is why probate should always be avoided if possible through the preparation of a Living Trust.
- A properly prepared and funded Living Trust avoids probate. It’s called a “Living Trust” because you must create the Trust while you’re still alive. If you form and fund your Trust before you die, you don’t have to go through the Probate court process, which means you can pass your assets to the beneficiaries named in your trust without any Court involvement. The whole procedure remains private and within your family circle and your estate planning attorney. You can also take advantage of the tax benefits of passing property through a trust.
- A will is still required even if you have a Living Trust, and the trust can be sued and challenged in Probate Court if an “interested party” files a Petition or some other proceeding against the Trust. We have experience in litigating trust disputes and can advise you on these issues during the drafting process should that be a concern.
- Besides a Will and Living Trust, everyone should complete a Power of Attorney (“POA”) for Finances and an Advance Medical Directive. The POA for Assets gives written authority to a trusted individual that you designate (usually a spouse or family member) to make financial decisions when you are not able to. The Advance Medical Directive gives authority to another to make critical health and medical decisions for you when you can’t because of your condition (injury, coma, dementia, etc.), but only within the guidelines stated by you in the Advance Medical Directive.
We will help you create an Estate Plan so you can have peace of mind knowing your estate plan accurately reflects your wishes, that it avoids the unnecessary legal fees and costs of probate, minimizes taxes, and helps to maintain harmony among family members after your passing.