The problem with estate planning is that many people assume that the process is only necessary for the very wealthy, but the truth is that every single person should devote time to crafting an estate plan to ensure that they will know who gets everything they have worked so hard for. Estate planning is not something that you should try to tackle on your own, so make sure you are working with an experienced California estate planning attorney
Estate planning is important because it not only protects your beneficiaries (especially young children) but can also spare them an enormous tax burden from the Internal Revenue Service (IRS). One of the most significant benefits of creating an estate plan is that you can also avoid unnecessary family disputes over your belongings and probate court proceedings.
Estate Planning Basics
In California, your estate will include any item or asset you own at the time of your death. When you begin making an estate plan, you will have to account for every type of property you own, which can include all bank accounts under your name, any real property or real estate, all stocks and other securities, any retirement assets, your personal property, and life insurance policies.
Your estate plan can include several documents. You will usually want to ensure you have medical documents such as a durable power of attorney and advance health care directive (AHCD) that could come into play if you are still alive but cannot make decisions for yourself because of some incapacity.
Some of the other common standard estate planning documents can include financial powers of attorney, trusts, wills, and guardianships. Many people assume estate plans are not necessary when they are married because their spouse would simply gain control of their assets if they die, but such transfers of control are not always automatic.
Wills & Trusts
When it comes to a will, you will decide which property to include in the will, decide who inherits your property, choose an executor, the person you entrust with carrying out the terms of your will, to manage your estate, choose a guardian for your children, choose a person to manage your children’s property, make the will, sign it in front of witnesses, and then store the will safely. A will can leave your property to certain people or organizations, name a person you trust to manage any property that you leave to minor children, name a personal guardian to care for your minor children, and also name an executor.
If you die without a will, then state intestacy laws come into play in determining how your property is distributed. California’s intestacy laws give your property to your closest relatives, beginning with your spouse and children.
When you have no spouse or children, then your grandchildren or parents usually get the property. Should a court exhaust your list of relatives and find you have no living relatives by blood or marriage, then the state can take your property.
California Probate Code § 6100 dictates that a person who wants to make a will must be 18 years of age or older and be of sound mind. A person will not be mentally competent to make a will if they do not have the sufficient mental capacity to understand the testamentary act, understand and recollect the nature and situation of their property, remember and understand their relations to living descendants, spouse, and parents, and those whose interests are affected by the will, or if they suffer from a mental health disorder with symptoms including delusions or hallucinations which can result in them devising property in a way that they would not have done.
The California Statutory Will form is found in California Probate Code § 6240. While this will can be simple and accessible, it will also be extremely limited in its purpose and should only be used when a person needs a will immediately and cannot afford to hire a California estate planning lawyer.
A living trust is a trust you can create while you are still alive, and your beneficiaries can receive your trust property after you die. There are a couple of significant differences between wills and trusts.
First, a will goes into effect after a creator’s death, but a living trust goes immediately into effect upon its creation. Secondly, wills require probate, while trusts do not.
Property that is left through a will can be tied up for months or possibly even years in probate court,whicht may involve court costs and lawyers’ fees for your family members. Property left through a trust, on the other hand, may be distributed to your beneficiaries immediately without the need for an attorney.
Making a trust does not mean that you will not still need a will. First of all, a trust cannot name guardians for minor children, and a will can also account for property that you might not include in the trust.
Probate will not always be necessary in every case. If a deceased person owned assets in joint tenancy with another person or as survivorship community property with their spouse, or in a living trust, or held assets in a revocable living trust, then assets may be inherited through a streamlined procedure with a Spousal (or Domestic Partner) Property Petition.
A probate court will still be involved, but the process can be relatively simple and problem-free. When the total value of a probate estate is small enough, probate will not be necessary.
California Probate Code § 13100 establishes a cap of $166,250, and when 40 days have elapsed since the death of a decedent, successors can, without procuring letters of administration or awaiting probate of the will, collect any particular item of property that is money due the decedent, receive any property that is tangible personal property of a decedent, and have any particular property that is evidence of a debt, obligation, interest, right, security, or chose in action belonging to a decedent transferred, whether or not secured by a lien on real property. When a probate will be necessary, then a person must come forward to start the process and it is usually the executor named in a will.
When a person does not leave a will, or the person who is named the executor is not available, a family member will have to ask the court to be appointed the administrator of the estate. The executor will file the will and a Petition for Probate with the probate court in the county where the deceased person lived.
The executor must protect all assets of an estate, and creditors will have four months to come forward with any claims relating to the estate. If the executor does not have enough money to pay all claims, then claims may be paid from the estate assets.
Planning for Incapacity
There will be three documents you need to plan for possible incapacity. They include a trust, a will, and a power of attorney.
A trust will allow you to move assets while you are in incapacity. When assets are held in trust, you can work around the restrictions of a will by including instructions for a trustee to begin distributing select assets or property among your loved ones in the event of your incapacity.
A living will can be an essential document that outlines your wishes as it relates to certain medical procedures. A living will can specifically rule out certain medical procedures or lifesaving measures and specify the choice of one procedure over another.
The durable power of attorney can be vital because it will designate an agent to make medical decisions on your behalf in the event you do become incapacitated. A power of attorney can have a wide range of durability, possibly being written to last a limited amount of time, until certain circumstances occur or lasting indefinitely.
Keeping Your Estate Plan Up to Date
After you establish an estate plan, you should revisit it every two or three years to discuss the changes in your life and ensure the estate plan is still meeting your needs. Any new asset you accumulate, such as a new bank account, a new business, or a piece of real estate may need to be added to your trust.
Funding your trust can be imperative to allow for the easiest administration of your trust and to help your family avoid going to probate court. Schedule A is the section of a trust that lists all trust assets.
Schedule A can be modified without a formal amendment, meaning you can simply write in new bank account numbers, real estate addresses, or other business interests. Schedule B identifies a husband’s separate property, and Schedule C identifies a wife’s separate property, and these should also be subject to regular updates.
Call Us Today to Schedule a Free Consultation with a California Estate Planning Attorney
If you know that you are still in need of an estate plan but are unsure about how to start, take the time to get legal representation. Arshakyan Law Firm handles all kinds of estate planning cases and can help people protect the assets most important to them and ensure their property passes to the people they want it to go to.
Our firm prides itself on communicating openly and honestly with our clients, and we work to help people achieve the most desirable outcomes for their cases. Call (888) 851-5005 or contact us online to schedule a free consultation with a California estate planning lawyer.
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