1. What is the difference between a will and a trust?
A will and a trust serve different purposes, but can be used together in estate planning. With a will you simply describe your property and name who gets what. With a trust you have to actually transfer your property into the trust. Property left through a will must go through probate. Property left through a trust does not have to go through probate. After death a will becomes public information. Because trusts are not subject to public scrutiny, people with privacy concerns should utilize a trust. A will allows you to name your executor and a guardian for minor child(ren), and the trust provides funds for the child(ren)'s care or for future expenses like a college education. The trust allows you to pass your property directly to your beneficiaries and avoids probate, which the will does not do. Some people should have one or the other and some people should have both.
2. What is probate?
Probate is a legal proceeding used to wind up a person's legal and financial affairs after death. In California, probate proceedings are held in Superior Court and can take as little as several months to as long as several years to complete. Any estate that is not 1) held in a trust, 2) owned as a joint tenancy with someone else, or 3) is part of community property left to a surviving spouse must go through probate.
3. Who should be executor/trustee?
If you have a revocable trust then you will likely name yourself as the initial trustee. However, you will need to name a successor trustee for after your death. The successor trustee distributes your assets according to the instructions in the trust. This person does not have to be an expert as they can have professionals helping them, but it is important that you name someone who is responsible and conscientious and that you trust will carry out your wishes. You can name adult children, other relatives, a trusted friend or a corporate trustee. If you name a person, you should make sure to name a secondary choice in case your first choice cannot act as trustee for any reason.
4. Why do I need to include fertility provisions in my estate plan if I signed a consent form at the clinic?
Yes, you will have signed a consent form at the fertility clinic indicating what you want to happen to the embryos and/or other genetic material. However, these consent forms do not contemplate what to do with the embryos/genetic material after your death. There are specific provisions that can be included in your estate plan to provide for the maintenance of your embryos/genetic material in the event of death.
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