Estate Planning in California
Investing the time to properly plan your estate is a genuine act of love and consideration for your spouse, children, and other relatives. Why? Because when you take the time to carefully develop a thorough estate plan, it means you are taking the steps necessary to ensure your loved ones can access necessary funds and important medical documents with relative ease and mitigate the risk of confusion, frustration, and internal familial friction about "who gets what."
What is “Estate Planning?”
Estate planning is the process of organizing your family's assets and deciding what will happen after your death. If you do not have an estate plan, your assets will go to your “next of kin” under California's “intestate succession” laws. In addition, there will also likely be a probate proceeding.
Overview of the Probate Process in California
Probate is a lengthy proceeding that takes in a court of law where an executor or executrix will administer your estate under the supervision of a judge. Probate typically includes the following steps:
- Deciding whether a will exists;
- Assessing whether a will is actually valid;
- Identifying the decedent's beneficiaries;
- Calculating how much your property is worth;
- Resolving your financial responsibilities; and
- Transferring your property to your heirs or beneficiaries
An important caveat to be aware of is when an estate is valued at $166,250 or less. In this situation, the estate may qualify for a less formal, more efficient probate process.
Elements of a California Estate Plan
An “estate plan” is not a single, catchall document. Instead, it is a collection of appointments, nominations, and directives that determine who will do what, and how your assets will be transferred from point A to point B.
When you decide to invest the time and resources in creating an estate plan, it is important to understand that your plan is comprised of highly customized documents that typically include:
- A Living Trust,
- A Last Will and Testament (includes Guardianship for Minor Children if necessary),
- Financial Durable Power of Attorney,
- Advance Healthcare Directive (designates Medical Power of Attorney and acts as Living Will for end-of-life decisions),
- HIPAA Authorization and Waivers, and
- Ancillary documents.
Each of these documents needs to be signed and carefully analyzed. They also need to be organized and properly stored so they can be located when you pass on or become incapacitated.
In addition to the documents listed above, there are additional documents that could be created by your California estate planning lawyer, depending on your unique circumstances. Additional documents may include asset protections for people anticipating divorce, bankruptcy, or lawsuits involving themselves or their loved ones. There are also Special Trusts and strategies that can be utilized to protect special-needs and disabled beneficiaries.
What is the Difference Between a Will and a Trust?
A will is a testamentary document that communicates a deceased person's wishes regarding the distribution of their assets. It is only active after a person's death and it must go through probate court, which is public record.
A trust, however, is a contract between a Trustor and Trustee for the benefit of a beneficiary. During your life, you typically will serve in all three of these roles. Unlike a will, a trust is active once it is created and assets are transferred to it. In addition, a trust does not go through probate court. Instead, it is administered privately.
Is a Last Will and Testament Enough?
Many people ask whether drafting a Last Will and Testament is enough and all of the other documents referenced above are just “extra” or ancillary to a Will. This is not the case. In fact, a Last Will and Testament is not actually an estate plan. In reality, a Will basically serves as nothing more than a letter that is reviewed by a probate judge that expresses your preferences and desires for your assets. Also, a Will does nothing to help family members if you become incapacitated and or wind up in a persistent vegetative state.
Another drawback to relying exclusively on a Will is that your estate would need to go through probate.
Reasons Why Having an Estate Plan is So Important
If you procrastinate and fail to put together a detailed estate plan, it means you are exposing your loved ones to feelings of anger, resentment, frustration, etc. This heightens the risk of a loved one, or loved ones, escalating the situation to litigation and challenging the veracity of your will. This means a significant of amount of time (and money) will have to be expended going to battle in a court of law.
The ability to mitigate the risk of unnecessary (and costly) litigation is a big reason why it is so important to have an estate plan. Another big reason is that a detailed estate plan helps ensure your loved ones can access needed funds and medical documents smoothly and without needless stress or anxiety.
Benefits of Retaining an Experienced and Knowledgeable California Estate Planning Lawyer
Planning an estate in California is inherently complex and challenging. Why? Because the state has an array of unique laws and regulations that need to be analyzed and considered when planning an estate. For example, some unique issues in California include community property laws and real estate laws.
When you are deciding what type of estate planning lawyer to hire, it is important to ensure the attorney you ultimately decide to retain has specific experience creating estate plans within the State of California. Any estate planning attorney you decide to hire should be ready and able to “dig deep” and clarify specific issues unique to your particular situation.
What Would Happen to My Minor Children if Something Happened to Me and My Spouse?
A judge, not you, would decide who your children's guardian will be if you do not designate guardians in an estate plan. The guardian chosen by the court may not be who you would choose to be your children's guardian.
Why Should I Hire An Estate Planning Attorney Instead of Doing It Myself Online For Less Cost?
If we had to answer this question in one sentence, this would be it: you get what you pay for. But don't take our word for it. If you do any additional research before deciding to do it yourself, read what it says in the Terms of Use of companies who provide do-it-yourself legal services, read this article in Consumer Reports, read this article in Entrepreneur, and read this article in Forbes. If you still want to do it yourself, we wish you well.
Take Action Today – Contact The Geller Firm
When you are ready to work with an estate planning attorney, contact The Geller Firm to have your individual needs assessed. The Geller Firm is here to help you and your loved ones. We offer a straightforward process for establishing a detailed estate plan. Generally, we take the following actions to get your plan organized:
- Schedule a 15-minute phone consultation.
- Complete an Estate Planning Intake form and gather documents.
- Schedule a 2-hour Estate Planning Session.
- Schedule your signing ceremony.
- Fund your living trust.
The Geller Firm will guide you through each step of the planning process and make sure all of your questions are answered.
