Frequently Asked Questions
Why do I need Estate Planning?
When a person becomes incapacitated or dies, in additional to the emotional stress involved, there may also be potentially pressing legal matters. Who has the authority to make decisions regarding the person’s financial or medical affairs? Or worse, is a court order required?
At its most basic, estate planning is used to ensure that a person is appointed over all of your affairs, to make medical or financial decisions, without anyone going to court. This saves time and money. But above all it gives you peace of mind knowing that your affairs can be dealt with by someone you trust, and you are not leaving a costly and time-consuming mess for your children or family.
Regardless of whether your estate is large or small, a comprehensive estate plan will ensure those you leave behind are able to not only handle your affairs, but to do so in the way in which you prescribe.
Why do I need a Trust?
Under California law, when an asset grosses in excess of $150,000, Probate Court is utilized to transfer the asset from the deceased person to his or her heirs. Probate is both time consuming and very expensive. Also, the Probate Judge may be unaware of what you want done with your assets, leading them to be distributed in a manner decided by the legislature (as written in the Probate Code).
A trust is a legal tool in which you transfer your property and eligible assets to your trust, during your lifetime. During your lifetime you control the trust and therefore, control your assets. However, the trust lays out very specific instructions for who is in charge of handling your assets upon your death or in the event you become incapacitated. The trust allows you to design a plan for how and to whom your property is transferred at your death.
Also, probate is a public process. The court’s decision is filed, accessible to the general public and may be viewed by any person. On the other hand, a trust is completely private. It is not recorded, filed with the court, or viewable by anyone other than your heirs and those who have been named your trust.
The best part is that trust property does not go through probate. Unlike the average probate that can last fourteen months (on average), some trusts are resolved in a little as six to eight weeks. The trust gives you the control to dispose of your property, and the means to handle it as efficiently as possible.
Why not just use legal software or a web provider like LegalZoom.com?
There are many options out there when it comes to establishing an estate plan, or new business entity. In recent years, a number of online companies, such as LegalZoom.com, have advertised simple and inexpensive alternatives to having these documents prepared. This is a great alternative, right?
We believe that it is important that everyone have a plan in place to have the protection they deserve. So if it’s the difference between using one of these services and having nothing in place, using the legal software is a viable alternative. Unfortunately, there are serious drawbacks with using the legal software.
In order to provide legal advice (about an estate plan or any other legal document), the person must be a licensed attorney in the State of California. The web services employ document preparers to prepare your estate plan, they are not attorneys and cannot provide legal advice. They simply input whatever language you direct in to your documents.
While that seems like a good option, the risk is the language you create may be invalid, unenforceable, insufficient or worse, illegal. Why bother creating documents that will not be effective or enforceable when the time comes?
Our experienced attorneys and staff are more than just document preparers. Our role as your attorney is not to simply prepare an estate plan or form your business entity, but to make sure that your plan is done correctly with the most benefit to you, including tax protection.
Every website or legal software company has the same disclaimer that once you complete documents, you should have them reviewed by an Attorney. Let our team of experienced attorneys give you peace of mind that not only are your new documents legally sufficient, but that you have the appropriate plan in place. Let us provide guidance to have it done right, the first time.
What should I expect at my first appointment?
“I’ve been meaning to do this for a long time…”
“My mother keeps telling me I need to get this done…”
“I’ve just been through probate for my father and I don’t want to go
through that, but I don’t know where to start…”
First, don’t worry – we’ve heard them all before. Seeing an attorney, whether it’s for the first time or not, can be intimidating if not daunting. Many of our clients begin the process, feeling the same way. But you have nothing to fear, we’re here to make the process as easy and painless as possible.
We offer complimentary consultations for your estate or business planning matter. There’s no pressure or hard sales pitch. It is our pleasure to give you the opportunity to become educated on your options and how planning (or the lack thereof) can impact you. If at the end of that meeting, you decide you don’t want to proceed, there is no obligation. That is our promise to you.
What should I bring to my first appointment?
Once you take the first step and schedule a consultation to discuss estate planning, the question then becomes, “what do I bring?”
Generally, we look for a few things from potential clients at the first meeting.
- The Grant Deed(s) to any real estate you own and
- A list of your assets and their approximate values.
At the consultation, we discuss who (in general terms) you would want to make financial or medical decisions for you if you were to become incapacitated. We also discuss guardianship for minor children, and who you want to settle your estate upon your death. For some clients, they need the consultation to talk through their ideas and make decisions. For others, they know exactly who they want (or do not want) to serve in these capacities. If you do know who you want to make decisions for you, it is helpful to bring their address and telephone number information with you.
If you don’t have any idea, or none of your paperwork is accessible there is no need to be embarrassed or cancel. We still invite you to meet with us and learn about your options. It’s our pleasure to serve you.
What is the difference between a Trust and a Will?
At a glance, a Trust and a Will look very similar in that both documents place someone in charge of your property and instruct how your assets should be distributed at your death. There is one major difference however: Wills are subject to probate and trusts are not.
A Will simply instructs the Probate Judge to follow your wishes for distributing your estate. A Will does not avoid the added time and expense of the probate process. With a trust, the probate court is not involved; rather, the trustee you designate (an individual or a corporate fiduciary) will follow your wishes, as described in your trust, to ensure your intended heirs receive your assets.
A Will is still one piece of an estate plan, and for individuals with small estates, a Will may be sufficient to protect and transfer your assets. One of our experienced estate planning attorneys can discuss this to see whether a Will or a trust is appropriate for your estate.
What is the process?
To establish a new estate plan, we begin with a complimentary consultation. During the course of that meeting, we gather basic information and discuss what plan would be most appropriate for your estate. After that meeting, we prepare a set of draft documents which are sent to you for review.
After the drafts have been reviewed, we ask you to let us know if there is anything that needs to be altered or amended in the drafts. After drafts are finalized, we schedule an appointment for you to come in and sign the documents. During the signing appointment, we go back through the documents, answer questions and provide guidance for maintaining your estate plan. During the course of the appointment the documents will be signed and notarized and at the conclusion, your estate plan will be effective and in place.
From start to finish, the process usually takes a little over a month. We understand that sometimes life gets in the way and the process may take longer. However, we are here to help you achieve the protection you desire and assist in implementing your plan.
If life circumstances require you to expedite this process, such as an illness or travel, we can always accommodate that as well.
What is the cost?
With regard to fees, we want to make sure that you are entirely satisfied with not only the legal work, but with our firm. For estate planning, we charge on a flat-fee basis – we want clients to know they can call and discuss their questions without being billed. For this service, we collect half the legal fee to get started and the balance when the documents are signed and completed. If it is more cost effective for you to have your matter billed hourly, we can accommodate that as well. We do not ask clients to pay an upfront retainer for hourly services, rather, we send you and itemized bill for our services as they’re completed.
How do I handle Guardianship for my minor children?
No one wants to think about it, but every parent has considered who they would want to have guardianship over their children in the event they pass away. Often, we also know who we absolutely would not have legal responsibility for our minors.
Since guardianship in California is always a court appointed process, the most effective way to ensure your choice for guardian is considered is to nominate that person (or persons) in your Will. This is your legal opportunity to tell the Judge who you want to raise your children in the event that you pass away while they are still young.
Without a guardian nomination in place, the Judge decides on the day of the hearing as to who will have custody.
How do I plan for a child with Special Needs?
Trying to decide how to distribute property at your death can be difficult enough, but that process is even more difficult if one of your beneficiaries has special needs. Perhaps it is a disability or often times it may be some form of addiction. There is a balance between making sure the beneficiary is cared for and ensuring the resources set aside for them are secure.
One tool we look to employ is called a Special Needs Trust. This specially designed trust is used to supplement the resources that a beneficiary is receiving, specifically government assistance (such as SSI). This means they receive the benefit of the trust assets you leave for them during their lifetime, but also continue to receive the social assistance benefits they have in place. If not planned properly, a beneficiary receiving social assistance may become ineligible if they inherit money from a trust without very specific Special Needs provisions.