Estate Planning and Trusts

Estate Planning law governs the laws, procedures and practices associated with planning for one’s estate in the event of incapacitation or death.  It encompasses:
Roles and activities of executors and administrators;
Creation and administration of Wills and Last Testaments;
Trusts and Living Trusts;
Medical Powers of Attorney,
DNR Orders and Advance Directives;
associated tax issues;
and various other related topics.

A Will is a document that transfers property to others after your death. Because you still own the property at the time you die, all the property transferred in the Will must go through the probate process, which is often slow and costly. Even people with Trusts sometimes have other property that is transferred by Will and has to pass through probate.

A Trust is a way of transferring your property to an artificial legal entity or "person" (the Trust) before your death, while still having the use and/or control of it during your lifetime. There are two kinds of Trusts, revocable and irrevocable. If the Trust is revocable you can change it or decide to take the property back any time during your life. If the Trust is irrevocable, you can’t change it once you have set it up. If you name yourself as the sole Trustee of your Trust during your lifetime, you will be able to manage the Trust while you are alive.

The Trust owns the legal title to the property in it while you are still alive, and since a Trust does not end at your death, it will still own the property when you die. You put instructions in the Trust for how the Trustee, or person controlling the Trust, should distribute the Trust property, and the Trustee will carry out those directions.

Only property owned by the deceased at the time of death has to go through the court process called “probate,” so the property in the Trust can be distributed without going through the probate process. Probate is the legal process which inherited property goes through in order to transfer the title of the property from the decedent to the beneficiary. If you have a large estate, or even a small estate with real property (i.e. real estate), it is often advantageous to set up a Trust, as it is usually far less expensive for your heirs when you die.

Our attorneys can help you decided whether a Will, a Trust, or some combination is best for you and your estate.  We provide expertise in managing the probate process.

Why do I need a will?
1. You have minor children.
You should write a will in order to appoint guardians for your minor children, and trustees to manage their property. If you do not leave a will, the court may appoint a guardian whom you would not have chosen.

You also need to write a will in order to prevent minor children from inheriting real estate outright. Although minors have the legal capacity to own property, they do not have legal capacity to manage it. If your children inherit a share of your house, your spouse would not be able to sell it, rent it out, or even refinance the mortgage without a court order. Getting court orders is expensive and time consuming. Although children generally do not inherit community property in the absence of a will, they do inherit a share of your separate property. In many families, the primary residence is partly separate property because the down payment was made with a gift from parents or with money earned by the spouses before marriage. (See the FAQ on community property.)

2. You have no children.
Do you know what would happen to your property if you died right now without a will? You might be surprised to find out that your spouse might not inherit everything. If you and your spouse have no children, your parents or siblings might inherit part of your home and become co-owners with your spouse. Your spouse would not be able to sell the house or other property without their permission, and vice versa. If you want to remember your parents or siblings in your will, it is best to leave them specific pieces of property that they will not have to share with your spouse. A will can accomplish this.

3. You have a large family.
All of your heirs will become co-owners of every asset you own, and will have to manage all the property together. They may not live in the same state, or they may not be able to agree on what should be done with the property. The more heirs you have, the more money and effort they will have to spend trying to get organized. With a will, you could leave specific assets to specific heirs, or put one heir in charge as trustee for the others. Either way, writing a will would save your heirs significant hassle and expense. It could also prevent major feuding.

4. You own real estate.
In the absence of a will, real estate is likely to be inherited by minors or numerous co-owners, and either result will be costly. A little estate planning now can save your heirs significant expense and trouble later.

5. None of the above.
Even if you do not think you need a will, you should still seek legal counsel to draw up powers of attorney for health care and financial matters. If you become incapacitated by illness or accident, a power of attorney will be critical to allow a friend or loved one to pay your bills and make health care decisions for you. These simple documents not only save money later, but they give you the security of knowing things will be taken care of in your absence.

Is probate really that bad?
Do I need a living trust?
Can my estate avoid paying an executor's fee?
How can I save estate taxes?
What is a bypass trust?
What is a life insurance trust?
What is a Crummey trust?
What is the difference between community property and separate property?
What taxes will the beneficiary of my life insurance policy have to pay?
What's the difference between an inheritance tax and an estate tax?
Who will get my property if I die without a will?