Southern California Wills & Living Trusts
Overview: Wills
A will is the foundation of most estate planning, and can help to provide a solid basis for any further estate planning that is necessary for you and your family. Without a legal, binding will, your assets will be distributed according to the probate laws of California at the time of your death, rather than according to your own wishes. Executing a will is important, especially since having a will can prevent family disputes, and excessive taxation of your estate. Additionally, if you have a will, it limits the possibility of state interference with regards to the dispensation of your assets and property. Depending upon several factors, including the size of your estate and your particular family situation, your will can be a simple matter or one that is highly complex. Regardless, the California Probate Law Center will work with you to create a will that is uniquely tailored to your circumstances.
In order for your will to be valid, it must adhere to the following criteria:
- made of your own free will
- in writing and signed by you
- witnessed by at least two adults who do not have any “interest” in the estate
Additionally, your will must contain very specific language so as not to leave room for misinterpretation. If you need help wording your will appropriately, our qualified California probate attorneys will assist you with implementing a will that is both valid and enforceable upon your death.
No matter your estate needs, whether it’s a straightforward, simple will, or one that requires more complicated estate planning, the California Probate Law Center will work with you to find just the right options for your estate. Our professional, experienced California probate attorneys assist our clients in the preparation of many types of wills, including:
- Simple Wills
- Pour-Over Wills
- Living Wills (Advance Medical Directive)
- Testamentary Trust Wills
Simple Wills
A simple will is what most people think of when it comes to directing how an estate will be handled upon death. In order to have a valid, binding will, it must be in writing, signed and dated by the person creating the will and must be witnessed by at least two people who are 18 or older and who are not named as beneficiaries. A will, in its simplest form is used as a directive in the courts, with the probate court overseeing the distribution of the estate according to the terms set forth in the will. Depending on the size and value of the estate, this probate process can take six months or more, and incur tens of thousands of dollars in fees.
Pour-Over Wills
The next type of will, a pour-over will, works along with an established trusted. This pour-over will simply directs all remaining assets after probate to be directed, or “poured over” into the already established trust. While some people may feel that it is not important to have a pour-over will because there is already a trust in place, it is important to realize that probate may be triggered if the trust is improperly funded, and the provisions of the trust will not apply without a pour over will to distribute the assets into the trust as intended.
Testamentary Trust Wills
Testamentary trust wills are wills which have a trust written into it. The trust is not established until after the person is deceased, and probate has been concluded. Additionally, the courts must approve the terms of the trust in order for it to take effect. These types of wills are generally used for minor children or for spouses when the decedent wishes to control the terms of distribution to those beneficiaries listed in the will.
Trusts
Living Trusts differ from a will in the fact that they must be maintained throughout the course of the individual’s life, and must be funded properly in order to be valid. However, the benefits of trusts, such the privacy and avoidance of the lengthy probate process can make this choice a good first step to a comprehensive estate plan.
A living trust can be revocable or irrevocable. If the trust is revocable, then the person who creates the trust can amend the terms as often as desired, and may even cancel the trust entirely. Usually, a living trust is created because the person wishes to maintain control of the property throughout his or her lifetime, and make adjustments as necessary. A person who creates a revocable trust may add or withdraw assets, change the terms or administration of the trust, and also retains the right to make the trust into an irrevocable trust at some time in the future. This does not mean that the trust has to be made irrevocable, just that the person who creates the trust has the option to do so.
With an irrevocable trust, the terms cannot be altered or terminated once the agreement has been signed and the trust is in force. There are two major advantages to the irrevocable trust, and that is the income is typically not taxable to the person creating the trust, and the trust assets are often not subject to death taxes with regards to the estates of the person who created the trust.
However, the benefits of these trusts are lost if the person creating the trust is entitled to receive any income, use the trust’s assets, or otherwise control the administration of the trust in a manner that is not allowed by the Internal Revenue Code. Therefore, it is important to have a trust that is properly administered from start to finish – and by having the help of a competent California probate attorney who can help to draft an appropriate trust that meets all the required guidelines.
Another type of trust has to do with those which are included in a will - a testamentary trust. Testamentary trusts are created as part of a will and must only become effective after death and the conclusion of the probate proceedings. The will contains the provisions of the trust and can stipulate that part or all of the decedent’s estate will go to a trustee who is charged with administering the trust property and making proper distributions as indicated in the trust. A testamentary trust may be changed or canceled at any time before the death of the testator, just as is the case with a living trust, however, in order for a testamentary trust to become operative, the will in which it is created must first be probated. A testamentary trust is only activated after the probate process is complete.
Our California Probate Law Center offers assistance with these and other types of trusts in the state of California. Our professional California probate attorneys can assist you with creating Married A-B Trusts, Special Needs Trusts, Generation-Skipping Trusts, Honorary Trusts, as well as Personal Residence trusts and Married Q-TIP Trusts. No matter your situation, our California Probate Law Center has a solution available to effectively manage your estate, so please contact us today for an initial evaluation.
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