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Wills, Trusts & Probate
Most people want to do what is best for themselves and their family. But sometimes, without proper guidance, good intentions have bad results.
Some people may think that to create an estate plan you have to be wealthy or they think that it is only for old people. However, everybody who owns a home should consider some sort of estate plan. Further, anyone with small children should consider a Will to name a guardian for their children should something happen to them before their children reach majority.
There are different documents required for a complete estate plan. Once the attorney speaks with you and evaluates your situation, she will be able to explain the function of each document to determine which suits your needs. Some of the most common documents are:
Revocable Living Trusts
A Revocable Living Trust is a legal document that contains your instructions on how you want your property distributed when you die. The Living Trust names a "trustee" of your choosing, who will be the person responsible for administering your estate according to your wishes. The greatest benefit of a Living Trust is that it avoids probate. This means that there will be no court involvement in administering your estate. A living trust brings your assets together under one document. There is a smooth distribution of assets to beneficiaries when you die without court involvement. A living trust is revocable and can be changed at any time. You have complete control of managing your assets while you are alive. Even though a Will is part of your estate plan, it is not the best document to create for the purpose of asset distribution. The reason for that is that a Will does not avoid probate when you die. All Wills must be admitted to probate before they can take effect. The probate process is expensive and time consuming. With a trust, your trustee has the power to transfer your assets to your named beneficiaries without court involvement. With a Will, the court has to say when assets can be distributed.
Even though Wills are not the best for asset distribution, Wills are an important part of your estate plan. Wills are useful for other purposes. You must have a Will to designate a guardian if you have minor children. Even though the Will still has to be probated, it will only be to ensure that your named guardians are appointed as guardians of your children. They are also useful to "pour-over" assets into your Revocable Trust. This may be assets that you acquired after creating your living trust, or any assets that are titled in your name only.
Power of Attorney
A power of attorney is a document that lets you name someone to manage your financial affairs if you become incapacitated and are unable to make those decisions yourself. It is created by an individual, the principal, to name another, an agent, to act on his behalf if he should become incapacitated. This document is essential to proper estate planning.
Advanced Health Care Directive
An Advanced Health Care Directive is a document that allows you to name someone else to make health care decisions for you if you become incapacitated and you are unable to make those decisions yourself. You can also leave burial instructions in this document and make decisions regarding your health care.
What is Probate?
The above mentioned documents serve a valuable purpose - they avoid probate. Probate is the legal process in which the court oversees that when you die, your debts are paid, and your assets are distributed according to your Will or according to California law if you have no Will. The disadvantages are many. First, it can be expensive. There are legal fees, executor fees, and other costs that must be paid before a total evaluation can be made of your assets. Second, it takes time. The court is in charge of the process and you have to wait until the court is ready for your case. It generally takes about nine months to one-year before distribution can be made. During the process, your assets are frozen until an evaluation is made. Nothing can be sold or distributed until the court approves it. Third, there is no privacy. Probate is a public process, and all your records are subject to public inspection by anyone.
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