Elder Care Law California
 
Estate Planning (Wills, Trusts)
 
Estate Planning
A Trust is not just a legal document carrying out your wishes. A Trust is also a communication of love and care for your children and all of those for whom you would like to provide. It is the Trust instrument that allows your beneficiaries to avoid legal obstacles, extensive court time and significant costs when they inherit your property.

In addition, a Trust could be an excellent tax planning tool for yourself.

 
   

   Types of Trusts:

    • Living Trust
    • Special Needs Trust
    • Charitable Remainder Trust
    • Irrevocable Life Insurance Trust
    • Grantor Defective Irrevocable Trust
    • Other


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Will- Will is a document where you can instruct how to distribute the property to the desired beneficiaries. A will is also used to name the guardians for your kids that are under 18 years old. Let our estate planning professionals determine whether a will a trust or other planning tool is more appropriate for your situation. Please call 1-866-822-7211.

Trust- The main reason why you want to set up a trust is to help your beneficiaries avoid Probate proceedings, possibly minimize estate and capital gain taxes and effectively carry out your wishes.

Living Trust is a legal document where all of your assets get transferred for your benefit during your lifetime and for the benefit of your beneficiaries upon your death.

Will & Trust FAQs:

      1. Who can be the executor of my will?       2. Will all of my assets be covered under the will?       3. What kind of different types of wills are there?       4. How do I change, revoke wills?       5. What happens if I die without a will?       6. How is a will carried out?       7. Who shall know about my will?       8. Who will be the trustee of my trust?       9. What are the benefits of the Trust?       10. Do I Need a Living Trust?       11. Is it enough to sign a trust document to avoid probate?       12. Do all of the assets need to be transferred to the trust?       13. What is the cost of the trust?       14. Are there other kinds of trust?       15. Do I still need to establish a will if I have a trust?       16. What are the other estate planning documents that I shall set up?       17. Can a trust help my estate avoid certain taxes?


1. Who can be the executor of my will?
The executors of your will shall be carefully considered and chosen as they will be the ones collecting all the assets upon your death, paying debts, taxes and distributing the remainder to the named beneficiaries. Also, you shall probably let your executors know about the existing of the will and where it is located. Even though you will name the executors who will distribute all of your property to the beneficiaries, the court will probably still probate your will.


2. Will all of my assets be covered under the will?
No. Certain assets like a Life Insurance , Retirement plans and some other financial accounts would have the beneficiaries named upon your death. Any real property that is held as joint tenancy or community property would pass to the survivor on a title without involvement of a will. Also, if you have assets titled under your living trust, the property will pass according to the terms of the trust, regardless of existence of a will.

However even if most of your property is held in joint tenancy or community property, has beneficiaries named or is titled under the trust, it is still a good idea to have a will in place just in case your joint tenant predeceases you or you receive a windfall of money in the future, or you have minor children that would need a guardian.


3. What kind of different types of wills are there?
There is a handwritten will, statutory will and a will prepared by a lawyer. A handwritten will as long as created in your own handwriting does not need to have witnesses nor a notary. A statutory will is a "fill in the blanks form" and needs two witnesses. A will prepared by a lawyer also requires two witnesses and is always recommended because an attorney will consult regarding other planning possibilities and possible tax savings which in a long run can be more economical.

A will is always created for one person and can not be joint like a living trust, thus both spouses will have to have a separate will drawn.

Pour over Will is usually created in addition to a living trust as a "back up" document, for all of the property accidently left out and not titled under the trust. Pour over will will pour all the other assets into your trust and will usually need to be probated.


4. How do I change, revoke wills?
In order to change a will you can either revoke it by creating a new one or you can execute a codicil. Codicil would require the same procedure as a will. To make the desired changes never cross out, add any notes or corrections on a document itself as it invalidates the will.

It may be time to review your will if your have recently got married, divorced, experienced a change as a loss or birth in your family, your assets have significantly increased or decreased or you want to change the guardian, executor or beneficiaries in your will.


5. What happens if I die without a will?
If you have not established a will during your lifetime, then all of your property pass intestate according to the state law. In California if you were married, all of the community property will pass to the spouse. Your separate property will pass to the spouse and your kids. If there is no kids their share will go to your grand kids if any or parents or other close relatives. Keep in mind that if your spouse predeceases you, her relatives may be entitled to some of her separate property. If you die without a spouse and any living relatives, your property will go to the state.

Call our professionals at 1-866-822-7211 to determine whether establishing estate planning documents could be beneficial to you.


6. How is a will carried out?
Will has to be probated. This is one of the main reason why most people choose to establish a trust instead of a will. Probate can be very expensive and lengthy procedure.


7. Who shall know about my will?
Nobody except you and your attorney needs to know about your will, however it's a good practice to let your executor know how to find your will upon your death. Many people choose to keep a will in safety deposit box or fireproof box.


8. Who will be the trustee of my trust?
You will assign yourself as a trustee and will be in control of all of your assets located in a trust during your lifetime. You will also assign a successor trustee who will control your assets upon your death and ultimately transfer all of it to the named beneficiaries. The successor trustee can be the same person as the beneficiary. The trustee will have the duty of loyalty and other fiduciary duties to the beneficiaries of the trust to manage the property with the most care. You shall always choose your trustees carefully and wisely. If there is no person that you trust, the professional trustee could be the option for you.


9. What are the benefits of the Trust?
Setting up a trust avoids probate procedure that your beneficiaries would have to encounter otherwise. The trustee transfers the property to the beneficiaries without court involvement which saves time and money for your estate.

Also, in case that you become incapacitated the successor trustee can manage the property that is owned by a trust for you.

Trust can also be a great tax planning tool, avoiding or minimizing estate tax and capital gain taxes.


10. Do I Need a Living Trust?
If you have any real estate you most likely need a trust. Also, even if you do not own real estate, if all of your other assets are above $100,000 in aggregate you shall establish a trust to avoid probate.


11. Is it enough to sign a trust document to avoid probate?
No. All of your assets need to be funded into the trust once the trust document is signed. The title to your house has to be changed to the name of the trust and recorded with the county recorder's office. Also, your investment and bank accounts shall be titled in the name of the trust. The property that is not properly funded into the trust will have to be probated. However, not all of the property has to be funded under the trust.


12. Do all of the assets need to be transferred to the trust?
No. Certain assets such as a life insurance, IRA and other pension plans already designate beneficiaries and the Trust would not be necessary.


13. What is the cost of the trust?
Depending on the complexity of the planning and size of trust it can range anywhere between $1200 and $4000 in legal fees. Frequently advertised low cost trusts, "one size fits all", may cost more in a long run and usually don't provide a complete trust package.


14. Are there other kinds of trust?
Yes. Even if a living trust is the most common estate planning tool, there are other trusts that can be considered. One may want to establish an Irrevocable trust to shield assets from certain creditors, however the tax implications shall be carefully considered in such case. Irrevocable Life Insurance Trusts are also a great planning tool for large estates. Intentionally Defective Irrevocable Grantor trusts could be a very sophisticated legal technique to avoid certain future creditor claims as well as deter the gift taxes to the later date. There are other tax sensitive trusts that an attorney may adopt for your individual situation.\

Testamentary trusts are usually established after probate proceedings according to the instructions in a will.


15. Do I still need to establish a will if I have a trust?
It is always a good idea to execute a will document in addition to a trust. Even though the assets transferred to a trust will not be controlled by the provisions of the will, the will would help to determine where the assets go that have not been funded into the trust. Many choose to set up a Pour over will that would pour all of the assets left outside the trust into the trust and in that case the distribution of such assets would be governed by provisions in a trust. h

Another reason to execute a will is to establish the guardianship for the underage kids.


16. What are the other estate planning documents that I shall set up?
Power of Attorney is a document that will allow the appointed agent to act on your behalf. It is usually used in cases of incapacity and can be made springing, valid only upon one's incapacity. Power of Attorneys for assets are usually used for assets that are not in your trust. Power of Attorneys can be limited allowing only certain powers or general allowing almost any action. Some power of Attorneys will not allow to make self-gifts for the benefit of appointed agents or other limitations can be included.

Power of attorney will terminate upon principal's death.

In addition to Power of Attorney for assets, Power of Attorney for health care shall be established. Such power of Attorney will regulate issues concerning life support sustention, organ donation, autopsy, funeral arrangements.

HIPPA is another document that shall be executed along with your health care power of attorney. Because of the Federal privacy laws it is difficult for anyone but yourself to obtain your medical information and records. HIPPA document will authorize your agents to gain access to the disclosure of your medical information.


17. Can a trust help my estate avoid certain taxes?
Trust document can be a great tax planning tool. Please consult your tax professional how a properly set up trust help your estate eliminate or reduce the taxes due upon death.











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