No, estate planning is for everyone, regardless of how small or how simple their estate is, because everybody has an estate and everybody needs to plan. If all the person had was their personal property items, their car and their bank account, then they would still need to decide who they would want to receive all those items if something were to happen to them.
They might also need to decide who would take care of their finances if they became very sick and were no longer able to manage their own affairs and they would also need to decide who would make medical decisions on their behalf if they were not able to make them for themselves. Even if it was true that the person did not have any money, they would still have property and they would have themselves, so they would need to make sure they had an estate plan.
People who have houses, cars, and kids really need to plan their estates because they would leave their kids in a very difficult situation if they did not decide who would be their guardians if something happened to them. The kids might not want to live with someone but they might end up living with that person simply because they were the people who won the court battle.
Clients who have houses, kids, and cars should really do their planning and make sure they did a thorough and complete job to make the best decisions for themselves, their assets, and their children so that everything ran smoothly and the children were protected.
Every state has a Law of Intestate Succession. Someone who left a will would exercise their testamentary capacity, which would basically be like deciding where their processions would go when they died, so if they had not done that, then the state law of intestate succession would dictate where their things went. In California, if someone was married, then everything would go to their spouse if it was community property; community property would be everything the person had acquired during that person’s marriage.
Separate property would be property that the person had before their marriage, so in that case some would go to the person’s spouse and some would go to their kids. If the person was not married, then their property would go to their children, and if there were no children around, then it would go to the person’s parents. If there were no parents living, then it would go to the person’s brothers and sisters, and on and on until an heir could be found.
The person might not want their property to go to a certain person but if they did not make any advance decisions regarding where they wanted their things to go, then the state would have to decide for them. Most people can avoid this situation by just making a simple will that would take care of making sure the person knew who they wanted administering their estate and where they wanted their assets to go.
In California, the best way to keep the government out of one’s business would be to set up a revocable living trust. The term inter vivos trust or family trust is the same thing; it is just a simple revocable trust. The reason it is called a living trust is because after the person was no longer around, the trust would still be alive doing exactly what it had been instructed to do.
A trust can be thought of as a person’s own little family company, where they would be in charge of it but if something were to happen to the person, they would have already stated who would be the new manager of it and who would get all of the possessions.
The nice thing about revocable trusts is that they would keep everything out of the court system, so everything would stay nice and private and the only individuals who would get the money or the assets would be the individuals or charities who the person had decided would get it. The great thing about trusts is that the person would get to dictate who got their assets, who would manage their affairs for them and that the government would get nothing, which is all that anyone could ask for with regards to estate planning.
A lot of people think that probate is not a big deal, but probate is a very long, tedious, and drawn out proceeding that could generally be avoided if the person had just done the proper planning in advance such as setting up a revocable trust.
It would really be purgatory if someone got stuck in the probate system because they would have to go through all of the deadlines where they would have to get things done and then they would have to hurry up and wait and then do something else, and then hurry up and wait and do something else and while all this was going on, the assets would just sit there and the person would not be able to do anything about it.
They would not be able to distribute the assets or give away the property so they would need to just sit there and wait for all the time deadlines to pass and for the probate process and procedure to be followed and for it to run its course. People are right when they say that probate is like living in purgatory, and the way to stay out of purgatory would be to get the estate planning done in advance and to make sure the person had a revocable living trust to take care of all their affairs and keep the government out of their business.
If the children were fighting over their parent’s processions, it would generally mean that the parents either did not do an estate plan at all or they did not properly implement a complete and detailed estate plan. If there was no estate plan at all, then it would be a free for all in the probate court and whoever had the best lawyer and spent the most money would usually get the assets.
Hopefully, if the revocable trust was drafted correctly, then there really would not be that many fights over the money. If the individual or individuals did a really thorough and detailed estate plan, then that would dictate who got which items of personal property, who received which assets whether it was bank accounts, the house, the investment account or the timeshare, and it would also dictate when they would receive it.
The beauty of doing a really good estate plan and a really detailed living trust is that everybody would know who would get what and when they would get it, so they would really not be able to ask any more from someone when they did their estate planning. The children could only hope that their parents had gotten their affairs properly in order and that they had good and competent representation and that they had put an estate plan together that they could be proud of and that the children could be proud of.
If a will could not be found, then somebody, generally the closest relative to the deceased person, would have to file a petition to open the probate in the county in which the person died and follow the law of intestate succession. An administrator would be appointed who would be assigned the task of managing the affairs of the estate.
The administrator would perform all of the duties and obligations of the person who was entrusted with administering the estate of the deceased person so they would marshal all of their personal property, they would get all the bank accounts closed and have all of the money placed into the estate bank account.
They would have to figure out which creditors needed to be paid and then they would need to negotiate and settle those debts. They would need to then provide all of that information to the judge so that the judge could sign a court order distributing the assets to the closest relatives who were legally entitled to receive the money. This process would generally take about a year and it would be very expensive in terms of the cost for attorneys and court costs whereas it could all have easily been avoided if the individual had just taken the time to do a thorough, complete and detailed estate plan.
You absolutely need to have a good and competent estate planning attorney. A good estate planning attorney would make sure the right people were chosen to perform the correct responsibilities when managing the affairs, whether it was child rearing, in which case the person would be called a guardian, or a trustee to manage the money, or in the State of California, there would be the agent named in the advance health care directive who would be the person who would make medical decisions on behalf of the person.
The first thing the attorney would do is make sure that the proper people were in the right order of succession and they were doing the right jobs. The attorney would then walk the person through the process providing a detailed estate plan as which assets would go to which individuals or to charities and when they would receive the assets. The attorney would obviously also make sure the real estate and the major assets were put into the name of the trust so there would be no probate.
The value of a competent estate planning attorney would go far beyond the money, because it would ensure peace of mind, clarity and it would ensure that the family was protected and properly taken care of.
There are many resources that a person could take advantage of in order to find a competent estate planning attorney. The person could go to Google reviews or yelp.com and check the attorneys’ reviews there. In case of a referral, the person would obviously be able to talk to people who had used that attorney before. They could ask the attorney for referrals and then go on the State Bar website and make sure that attorney had never had any disciplinary actions against them.
The value of an estate planning attorney goes beyond words because when you are gone, the only person who would be sure that affairs were being managed properly would be the attorney who drafted the estate plan. The client would really be relying on that attorney to make sure that after they were gone or after they became incapacitated, that their personal and financial affairs were being handled and managed exactly in the way they had wanted.
People sometimes ask whether they would need a good estate planning attorney to manage their affairs, and the answer is yes, absolutely. They should have a competent and experienced estate planning attorney put together their estate plan for them and help them implement it to the best of their ability.
The first misconception is that it would be incredibly expensive, although that would totally be a matter of how well the person was willing to shop the market. Certain attorneys would do it for a $1,000 or $2,000, whereas some would charge $3,000, $4,000 or even $5,000.
I always tell people that they did not make the right decision if they did not shop the market and did not find the best attorney for the best price. Someone who wanted to buy a car would not just walk in and buy a car from the first person they saw because they would want to shop around so they could look at different dealerships, different models and check out the pricing and the options. It would be the exact same thing when someone hired an attorney.
Another misconception is that it would take forever to get done, it would be a big hassle and it would ruin the person’s life to put the estate plan together. I always joke with my clients and say that estate planning would take 20 years and 20 minutes. It takes 20 years to get around to actually doing it and then 20 minutes for the person to sit down with themselves or with their loved ones and answer about 15 questions on a questionnaire that I provide to them, so that after they were done with the questionnaire they could come in and meet with me so we could have the actual planning meeting.
I then prepare the documents and send them to the client for review. If they are happy with the documents, then the client can sign the documents and then have the documents witnessed and notarized. The person would need to take care of a few funding things after that, but other than that they would be done. It is not complex, time consuming or a big hassle provided the person was working with a competent estate planning attorney who had a good process and procedure in place in order to make the process comfortable, seamless and efficient.
Another misconception is that estate planning is only for the rich. Every person in the whole wide world has an estate, even if it was just their personal property. Everybody may want certain possessions like certain jewelry to go to certain people, they may want the car to go to a certain person, so if they did not plan their estate by at least doing a simple will stating who would get those items, then they leave it up to somebody who they really might not want making the decisions for that.
Even someone with a very small estate would need to have an estate plan and they would need to decide who would receive their property when they were gone. Everybody should decide who would manage their finances if they were incapacitated and they should decide who would make medical decisions for them if they could not make them for themselves.
Other things to consider are what the person would want done as far as life support, whether they wanted to be an organ donor, what they would want for their burial or cremation instructions and a lot of other matters that would need to be addressed when they were figuring out what to do. Even if the person did not have any property, they would still have themselves and they should decide how they would want that handled.
I have clients who are 25, newly married and have a child, and who are doing their estate planning. My oldest client who finally got around to doing his estate planning was 92. People really need to complete their estate plan early because the sooner the better, and the longer they waited, the longer they would have a chance of prematurely dying or becoming incapacitated.
Once the person had an idea of what they wanted to do with their property and with themselves, they should get to a competent attorney and make sure they got their estate plan done. The reality is that the people, who I get probate cases from, are people who waited too long and then died so their whole family had to deal with the probate system which is just not something anyone would want to do to their family. Time waits for no one, so the best time to get an estate plan done would be sooner rather than later.
Most people think that the process is so difficult, painful and expensive that they just never do it. I always tell people that picking up the phone, calling an attorney, talking to them on the phone for five minutes and then making an appointment to just come in, sit down and meet with them would really be the hardest part of the entire process.
The hardest part of the whole process is just deciding to just go and talk about estate planning. People think it would be a difficult to do, but because of the way I walk people through their estate planning, they always tell me at the end that it really was not that bad at all because I had done the hard part for them.
It is my job to help people, and I always tell them that the hardest decision they would need to make would be to just pick up the phone and call me or any other competent attorney and then go in, sit down and tell them what they wanted to do, ask what they needed to understand and ask the attorney to help them, because once they did that, they would be home free.
Many well intentioned people are buying software products and doing their own estate planning, or are hiring discount lawyers or using general practice attorneys who bought a software program and then “dabble” in estate planning. The risk you run is that you will not know that your estate plan is defective until you are incapacitated or dead and at that point it is too late for you to do anything about it. So if there is one time in your life that you want competent representation, then this is it. Estate planning requires knowledge in several different areas of law so for the “do it yourselfers” or the “dabblers” this will cause problems down the road for you or more likely for your family and heirs. My normal fee is around $1,500.00 to $2,000.00 for everything and that is quite competitive in this marketplace for a competent estate planning attorney. To modify a trust you just need to do another document called an amendment and the normal fee for that is usually just a few hundred dollars. If you need to change your Last Will and Testament, Durable Power of Attorney or Advance Health Care Directive, those can be done very quickly and the fees to do that are generally quite reasonable as well.
If your estate’s net worth is over $5 million single, $10 million married, the excess is subject to a tax beginning at 45%. If you are married, the death tax can be deferred until your spouse’s death, but must be paid at that time. So for most people estate taxes are not a big concern anymore. For larger estates, there are several options for reducing estate taxes.
If you are incapacitated suddenly or have a degenerative illness such as Alzheimer’s, you may become unable physically and/or mentally to carry on your own affairs. If this happens and you have not planned for it, your loved ones must apply to the court for authorization to act on your behalf. It is time consuming, complicated, requires you to deal with the state and county government bureaucracies and will cause you to incur costly and unnecessary attorney’s fees. The durable power of attorney and advanced health care directive provides your agents with the legal authority necessary to act on your behalf and make almost all necessary financial and medical decisions, and they are made by the person that you appoint, not whom the court appoints.
If you have a child or loved one with disabilities who is on state or federal benefit programs such as Social Security Disability (SSI) or MediCaid/MediCal, you can not leave them assets directly in your will or living trust because on your death they would no longer be deemed eligible for those benefits because they then have assets. A properly drafted special needs trust allows them to make use of the assets during their lifetime for certain specific purposes without disqualifying them from receiving those government benefits which they clearly need.
Settlors, Grantors and Trustors all mean basically the same thing, it is really the name of the owner and creator of a trust. I prefer to use the term “Settlors” because they are the persons who set up the trust and settle matters related to its management. The only one who will ever be the Settlor of the trust is you. The only one who can revoke or amend the trust is you the Settlor so that when you die, your trust then becomes irrevocable.
A trustee is a fancy name for the manager of the trust. The Trustee is the person who has signature authority to sign on behalf of the trust and to manage all the affairs of the trust. While you are alive it is you. Upon your death or incapacity, you name a person to succeed you as Trustee and that person is called the Successor Trustee. The Successor Trustee has the same authority that you had in the ability to sign on behalf of the trust and to manage all the affairs of the trust. However, the Successor Trustee is not a Settlor of the trust and hence has no authority to modify what you decreed that the trust was to do after your death. The Successor Trustee’s job is to carry out your wishes to the letter and has no discretion to do otherwise. You can choose anyone you want to be your trustee and it is perfectly ok for a beneficiary to be a Successor Trustee. Since it is a financial and legal type job, it is best to pick someone with business savvy so that they manage your trust in the manner in which you intended it to be done and are not taken advantage of by other beneficiaries or swindlers. Quite often professional fiduciaries are used such as private parties or banks and trust companies. They are generally more expensive but have experience in managing trusts whereas your family member probably doesn’t have the same level of experience. Choosing a trustee is an important decision that I help my clients with all the time.
A beneficiary is a person or persons who will benefit from the assets of an estate be it a trust estate such as in a revocable living trust situation or in a probate estate situation where there is just a will or no will at all. With regard to your revocable living trust, while you are alive you are the beneficiary of your trust. When you created your revocable living trust you stated in it that upon your death that certain other people will then become the beneficiaries of the trust. As with everything else involved in a revocable living trust, while you are alive it is all yours and when you die, the parties that you picked to be the remainder beneficiaries will then receive the proceeds of the trust estate. If they are not alive, then the contingent beneficiaries that you named in the trust will then receive the proceeds of the trust estate.
An executor is the person named by you in a will to manage your probate estate. An Administrator is a person appointed by the court if there is no will to administer the estate. The duties of an Executor and Administrator are the same.
An agent for either a Durable Power of Attorney for Financial Management or for an Advance Health Care Directive is someone that you designate to make decisions for you in the event that you cannot make them for yourself. Each document gives you the opportunity to specify who you want to fill each role and to name alternates as well. The duties for each document are quite different from each other. The Power of Attorney is a financial job so you would want someone who is both trustworthy and has a good business mind. The Health Care agent should be someone able to make difficult and emotionally challenging medical type decisions that will impact the family and beyond for a long time, As such, it is good to pick someone who is level headed in a crisis and understands the medical issues involved.
Quite often the same person is named in the will as Executor, as Successor Trustee in the Trust, as agent for financial matters and agent for the medical directive. It is perfectly fine for one person to do one, two, three or all four jobs, they just understand that as to the probate estate that they are the Executor, as to the trust estate they are the Successor, Trustee and as agent where named in the other documents.