Regardless of whether or not you have children or a large amount of assets, it is important to plan ahead for your future by considering having a will and trust prepared. The question many ask, is which is right for me? There are both benefits and disadvantages of having a will prepared versus a living trust, so contacting an attorney and discussing your specific goals and circumstances, and having your options explained to you is very important.
In addition, you have the right to make decisions regarding your medical treatment. This can be set forth in an Advance Health Care Directive, an attachment to your will or trust, which describes your wishes regarding your medical treatment should you become unconscious or mentally incapacitated.
Below is some of the information you should consider before meeting with an attorney to discuss the preparation of a will or trust.
What is a Will?
A will is a legal document that sets forth your wishes regarding your assets and children in the event of your death. It will address any property you wish to leave to others and allows you to legally nominate a personal guardian for your children.
Regardless of your marital status, you may want to consider a will to designate the property you wish to leave to others. In addition, if you have any beloved four-legged friends, it can also provide who you want the animals to be taken care of by and any other special instructions.
Unfortunately, a will still has to go through the probate process unless your estate is worth less than $150,000, then there are some exceptions.
What is a Holographic Will?
A holographic will is a will that is hand-written and not “witnessed.” Typically, a will is only valid if your signature was witnessed and dated in front of at least two witnesses. However, in California and some other states, unwitnessed or “holographic” wills are valid, if they are done correctly.
The entire will must be hand-written, signed, and dated. However, since there were no witnesses to the will, it is often more difficult to prove the validity of the will during probate if the will is contested.
Since probate can already be a very timely and costly process, a holographic will is not recommended. We recommend either retaining an attorney to prepare the will for you.
What is a Living Trust?
A living trust is a legal document that creates a trust, which is a separate legal entity that holds any property you have transferred to the trust. Typically you will designate yourself and/or your spouse as the trustee of the trust, which is the person(s) who will have control over what is transferred in and out of the trust. You choose what property you would like to put into the trust and can elect to take property out of the trust as well.
By putting property into the trust, such as houses you own and any other assets, upon your death the property in the trust can be transferred to your named beneficiaries, without the necessity of going through the probate process. A party may still dispute your living trust, however because you are actively involved in the management of your living trust, a party that wishes to challenge a trust has a much higher burden to meet than contesting a will and is less likely to prevail.
This is one of the main advantages in creating a trust, since avoiding probate may be very cost effective.
Moreover, it is also very time consuming to go through probate. Due to recent budget cuts across the state, it is taking even longer than usual for an estate to go through probate. If this is something you may be able to avoid by having a living trust prepared, it is worth considering.
How Do I Know Which One I Need?
In California, if you have over $150,000.00 in assets, you may want to consider a trust. You can always have a trust created if you have less than that amount, however absent special circumstances it is typically not necessary and a will would likely meet your needs. Most attorneys who prepare a trust for you will also prepare a will and health care directive with the trust.
Why Is It Important to Have an Attorney’s Assistance?
There are laws that govern what may be included in a will, so if the will is not drafted correctly or is not sufficiently detailed enough it may be contested later on, causing probate to be even more expensive to the estate. There are also many complexities involved with preparing a trust. If it is not done correctly or property is not properly put into the trust, your wishes may not be followed with how you wanted property distributed and your family members and friends will have to wait out the probate process.
How Do I Choose An Attorney?
Choosing an attorney to handle your will or trust is a very personal decision. You will be spending a lot of time with this person in preparing your will or trust and divulging very personal information. In other words, you need to find an attorney that you feel comfortable with. When meeting with an attorney make sure to find out what they will be preparing and if they help you transfer your assets into the trust.
Don’t be afraid to ask the attorney if he or she will be the one primarily working on your case, how long he or she has been practicing, what their experience is in this area of law, and what you can expect during the process of representation.
This blog was written by Kimberly Wallen, a legal extern who is very smart but not yet a lawyer. The information provided in this blog is for informational purposes only and not for the purpose of providing legal advice. This information only applies to California. Even if you live in California your city may have laws that interact with these laws uniquely. Additionally, laws are always changing. Basically, do not rely on this blog for legal advice; call an attorney to go over your specific situation.