Estate Planning FAQ
Read more about our Estate Planning Practice here.
Here are the answers to some questions that we are commonly asked by clients who have estate planning needs.
What is the probate process?
Probate is a formal legal process in which the following happens:
- The executor opens the probate process by filing a letter with the court
- The will is identified and authenticated
- The court appoints the person named in the will as the executor of the estate
- All interested parties are notified of the probate process by the executor (including beneficiaries, heirs, and creditors)
- The executor identifies and values all property that should be included in the estate
- The executor will settle the death of the estate by paying back creditors ( or the executor may deny the claim that is filed by creditors)
- The assets are either sold and the proceeds distributed to the beneficiaries, or the assets are given directly to those named in the will
- The estate is closed out
Is there anything that can go wrong during the probate process?
Yes. Probate may be a time for litigation. If someone is angry about being left out of the will or they object to the inclusion of someone else in the will, they may file a lawsuit. Interested parties may contest the validity of the will. These are expensive and difficult challenges that can cause extreme tension within families.
In addition, creditors may come forward with claims, and the executor may dispute their validity. Probate can be a highly technical process that requires much paperwork and many steps. It could take time and knowledge of archaic laws to navigate this process.
Is there any way to avoid the probate process?
Yes. If you form a trust, it already goes into operation once you execute the documents and move property into the trust. Since a trust is self-executing, there is no need for a legal process to authenticate anything or distribute assets.
Trusts can offer many advantages for a family. Not only are you able to take care of certain loved ones according to your wishes, but there may also be tax benefits. While you may need to do some work on
the front end to establish the trust, it could save your family expense and hassle during a difficult time. Trusts can give you more certainty than you otherwise would have.
What happens if I die without a will or trust?
On the bright side, your property would still go to your heirs, and it would not be surrendered to the state. However, there would likely be a significant legal hassle if you died intestate. The court would need to appoint an administrator for your estate. Then, your assets would be divided according to the formula specified in California Intestate law. You would lose all ability to have any say in what happens after you die. The same holds true for both your property and any minor children. In the meantime, your loved ones would go through additional stress that they otherwise would not have had to encounter if you had a will and/or trust in place when you die.
Are all of my assets subject to a will?
No. Some accounts rely on beneficiary designations. For example, your retirement account and your life insurance policy require that you designate one or more beneficiaries to receive the proceeds after you die. These accounts are transferred when you provide the custodian proof of the account owner’s death, and they do not go through the probate process, nor are they a part of a will. The beneficiary designations on these accounts are binding, so you need to review them periodically to ensure that they still reflect your current wishes. Otherwise, you may have an undesired result after you die. Even if you are divorced, you must still physically change the beneficiary on the account.
Is estate planning just about assets?
No. There are a number of things besides assets that may be covered in an estate plan. One of the most important aspects of any estate plan is a power of attorney. This document is a binding legal designation that becomes effective when it is necessary. A power of attorney gives someone the ability to make decisions on your behalf according to the terms of the document. For example, you could give specific power of attorney over financial or health matters, or you can give a broader general power of attorney that would give general decision-making Authority.
In addition, an estate plan could also designate a guardian for your minor children and specify how they are to be raised if you are no longer here. Without these instructions in place, a court would need to appoint a guardian, and your wishes would not be known. An experienced estate planning attorney will discuss all the possibilities, so you are aware of them when you are making your estate plan.
Do I need an attorney to help with estate planning?
It is very risky to attempt estate planning on your own without the help of a knowledgeable and experienced professional. If you make a mistake, you could end up with an unintended result. Even
worse, some arrangements that you were relying on may be legally invalid in the first place. When you invest in an attorney for your estate planning, you give your family more peace of mind that the plan that you have will actually protect them when the time comes. There is no legal obligation to have an attorney, but it is a smart thing to do for your family’s well-being. You have worked a lifetime to protect your family, and a comprehensive estate plan allows you to continue protecting them for years to come.