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Do I Need a Will or Revocable Trust?

With a will, you name an executor to carry out the dispersal of your assets to your beneficiaries and you can name guardians for your children, if needed. In California, if you have a will and have assets worth over $150,000, your estate will have to go through probate court. These assets include the fair market value of your home, bank accounts, some investment accounts, stocks and bonds, business interests, etc.  If you own property in California, chances are high that you meet this $150,000 minimum requirement and would need to have your will carried out through probate and be court supervised.

Currently, probate cases can take anywhere from nine months to two years or more in court.  There is a significant court backlog due to budget cuts and a strained court system. If your will does go through probate, the following amount of your estate would go to attorney fees (by statute): 4% of the first $100,000 of the gross value of the probate estate; 3% of the next $100,000; 2% of the next $800,000, etc.  For example, if you own a $550,000 home and your bank and brokerage accounts (non-retirement) and cars equal $150,000, your estate will have to pay attorney fees of $17,000 in addition to probate court fees.

If your estate is in probate, it can be difficult for your beneficiaries to access money for such important needs as school tuition.  Furthermore, everything in probate court is public record. That being said, a will can still be a sufficient estate planning tool for some families. 

A revocable or living trust can avoid probate which can save your loved ones a lot of attorney and court fees.  Trusts are private and do not require court supervision.  While you are living and have capacity, you are the trustee of your trust.  A trust agreement is an agreement between the settlor and the trustee that the trustee will hold certain property in trust for the benefit of a beneficiary.  The trust essentially takes title/assets out of your name and puts it in another entity in order to avoid probate.  After a trust is created, it is essential that you fund the trust.  A revocable trust can be a very effective estate planning vehicle for many families. In addition, Katie Dunn Law can also work with you to draft a pet trust or special needs trust if needed.

How Can My Estate Plan Provide for My Children?

Your estate plan should address issues regarding the upbringing of your children.  If you do not have a guardianship established, a judge could decide who will raise your children and control their financial affairs upon death of the parents.  Having a guardianship in place gives parents the peace of mind that their children will be taken care of in the event of death or incapacity. We can discuss who would be an effective trustee and/or guardian for your children.  It often can be good to have them be different people.  In addition, a trust can also ensure that children receive assets at specific ages and milestones rather than receiving all of the financial assets at a young age.

What Is a Financial Power of Attorney?

As part of your estate planning package, you would also receive a durable financial power of attorney (POA) and an advance health care directive. With a financial power of attorney, you are designating an agent to act on your behalf regarding financial decisions if you become incapacitated or when another triggering event occurs. The benefit of a POA is that it avoids the need for a probate conservatorship (where the court has to appoint someone to make financial decisions for you due to incapacity). Probate conservatorships can be expensive, time consuming and are also part of the public record.


What Is an Advance Health Care Directive?

With an advance health care directive, you are naming a surrogate to make your health care decisions for you if you are unable to do so due to incapacity. Katie Dunn Law estate planning packages also include a HIPAA authorization form allowing physicians and medical facilities to release medical information to certain, specified individuals.


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