I am a proud wife, mother, daughter and practicing attorney. After having twin boys, I realized how crucial it is to prepare for the future and decided to focus my practice on estate planning. My goal is to make the planning process as easy as possible and help families obtain the peace of mind that comes with knowing loved ones and assets will be taken care of regardless of what the future holds. No financial decisions should be made during a time of stress or grief. Planning ahead is the best way to ensure that no long term financial or life-altering decisions will be needed during those stressful times.
Why do I even need an estate plan? I strongly encourage anyone with any assets whatsoever - and certainly anyone with any dependents - to prepare a complete estate plan. A well prepared estate plan will (1) allow you to determine happens to your property and your minor children, (2) allow you to set forth specific circumstances under which any surviving children - minor or adult - can have access to funds, (3) allow you to plan for what will happen to you should you become incapacitated and lastly, (4) allow your surviving family to grieve without worrying about the logistics of handling your estate.
Why can't I just use one of the DIY products and prepare my own estate plan? Simply put, estate planning is serious business. One wrong or missing word can have disastrous consequences. The money you save by using one of the DIY programs may ultimately be wasted when you or your surviving family members eventually have to hire a lawyer to clear up any inconsistencies or deal with litigation. State laws are very specific about what can and cannot be in a will or a trust; who can serve as a personal representative, health care trustee or medical or financial power of attorney; and what requirements must be followed when signing a will versus a trust to transfer assets to beneficiaries. Using an estate lawyer becomes even more important when dealing with complicated family situations. Do you have step-children, are you divorced, are you in a second marriage, do you have a disabled or special needs family member? These are just some of the circumstances that call for the help of a professional.
What can an estate plan do for me? Having an appropriate estate plan will enable you to make decisions that are important for your family's well-being. For example:
(i) Who should be your executor and trustee? The executor and/or trustee is in charge of managing your assets following your death. Usually a spouse fills those roles, but after the death of both spouses it is important to designate someone who has knowledge of your family situation and philosophy and is capable of carrying out these duties or employing other professionals to do so.
(ii) The guardian of your minor children is the person with whom your minor children will reside and the person who makes parental type decisions such as what schools to attend, religious training, allowance, medical decisions and other decisions that normally are made by parents during a child's minority. While it is possible for the executor, trustee and guardian to be the same person, the executor and trustee require some financial knowledge while the guardian should be someone with parental abilities.
(iii) The revocable trust provides how your assets will be distributed at the time of your death. For example, if your children are minors, there should be a trust for their benefit that enables the trustee to manage the assets on behalf of the children until the children reach sufficient maturity to manage the assets themselves.
(iv) If you have had difficulty with fertility and/or used alternative reproductive technology to form your family, appropriate provisions in the trust can provide for the maintenance, storage and eventual use or disposition of embryos and other genetic material following your death. The law in this area is complex, but appropriate provisions in your trust can avoid legal disputes that can be expensive and emotionally taxing.
What does an appropriate estate plan look like? In California, most estate plans are implemented with a will and a revocable trust. A complete plan should also include an advanced healthcare directive and HIPPA authorization and power of attorney documents.
(i) A will directs how your assets will be distributed upon your death and can appoint a guardian for minor children. If your estate plan is implemented through a will only, it will be necessary to go through the probate process to have your assets distributed in accordance with the terms of the will. Although "going through probate" has been maligned as something awful, a properly handled probate is not the evil experience that people assume. However, "going through probate" can be more expensive than necessary and can delay the distribution of your assets, both of which can be avoided by using a revocable trust in conjunction with the will.
(ii) A revocable trust, also known as a "living trust" is a legal fiction. You must transfer your assets during your lifetime to the trust. The trust's primary purpose is to hold title to your assets so that the probate process is avoided. However, even if you use a revocable trust, it is necessary to have a "pour-over" will. A pour-over will is essentially a catch-all that will leave any asset not specifically transferred to the trust, to the trust through the probate process. A revocable trust also ensures privacy. If your assets go through the probate process, a list of the assets and the value of those assets become public record along with the provisions for your family. Using a revocable trust avoids having this information become public.
J.D., Southwestern School of Law
B.A., University of California, Santa Barbara
Member, State Bar of California
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