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Frequently Asked Questions

What happens to your Children if something happens to you?

What's the point of a Living Trust?

What is Probate?

Don't I Avoid Probate if I have a Will?

Don't I Avoid Probate if I have a Trust?

What are the 4 Legal Documents Every Parent Should Know About?

What is included in a Complete Estate Plan?

What is a Will?

What is a Durable Power of Attorney for Finances?

What is an Advance Health Care Directive?

What is a “Trust Certificate” or “Certification of Trust”?

What is Estate Planning?

Should I buy a 'Cheapy' Trust from the Newspaper or the Internet?

My friend is a lawyer but does not usually do Probate, Wills or Trusts. Should I have him/her draft a Will for me or handle my Probate?

Why isn't Joint Tenancy enough?

What happens to your Children if something happens to you?
Actually, it's up to you, and you have two choices: a) Decide now who you think should raise your children if you could not, and name them in your Will as 'Guardian'; or b) If something happens to you, let a judge make the decision for you.

Of course, the right decision is obvious, but many people procrastinate here because they can't decide who the 'perfect' choice would be. Just remember that a good choice by you—even if it's not the 'perfect' choice—is going to be better than one made by someone you've never met. Also keep in mind that it's something you can always change.

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What's the point of a Living Trust?
The primary benefits of a Living Trust are that when it is used properly, it avoids Probate, ensures that children do not inherit assets before they are responsible enough to use their inheritances wisely, and can double a married couple’s protection from Estate Taxes.

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What is Probate?
Probate is when you go to court to have property ownership transferred out of a deceased person's name, and into the names of the people who are going to inherit the property. This is a necessary process for anyone who has not done proper estate planning. Assistance of an experienced Probate Attorney is highly recommended for Probates to help navigate through the maze of courts, legal documents, accountings, and financial institutions that are part of every Probate.

Because of the timelines set by California law, Probate in California takes a minimum of 7 to 8 months, and averages 12 to 18 months to complete. Fees for the attorney and executor are set by California law and are paid from the assets in the Probate Estate (and not by the beneficiaries).

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Don't I Avoid Probate if I have a Will?
No. This is a very common misconception. Think of a Will as your ticket to Probate.

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Don't I Avoid Probate if I have a Trust?
Yes, but only for property you transfer into your Trust. But be very cautious here. Make sure you get professional help with this because you will need to know the correct language for the transfers, which assets should/should not be transferred into your Trust and the different methods for transferring different assets into your Trust. Not transferring assets into your Trust or transferring assets incorrectly can be worse than having no Trust at all.

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What are the 4 Legal Documents Every Parent Should Know About?
The 4 Legal Documents are a Will, Living Trust, Advance Health Care Directive, and Durable Power of Attorney for Finances. Click each of these documents to see more information about them in the FAQs on this page, or visit the Estate Planning page for a brief description of each of these documents and how they fit into a basic Estate Planning Package.

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What is included in a Complete Estate Plan?
A basic Estate Plan generally includes Will(s), Living Trust(s), Advance Health Care Directive(s), Durable Power(s) of Attorney for Finances and where appropriate a Community Property Agreement and/or other tax saving documents like Life Insurance Trusts (ILITs). Also included should be instructions for transferring assets into your Trust, a binder with tabs for each document (Living Trust, Will, etc.), and a place in the binder to write down where your safe deposit box is, where the key is, list bank accounts, life insurance policies, financial advisors names and phone numbers, etc. For more information on a Living Trust Package, go to the Estate Planning page.

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What is a Will?
A Will is a very useful document that allows you to: nominate someone to raise your children after your death, say who gets your property after your death, and appoint a 'Personal Representative' or 'Executor' who will appear before the Probate Court, gather your property, pay your debts and taxes, and distribute your property per your instructions.

The problem with only having a Will is that it is your ticket to Probate. If you have a Living Trust and have properly transferred your assets into it, you will avoid Probate. Note that if you have a Trust, you still need what's called a 'Pour-over Will' to nominate a Guardian for your children and to cover any assets that were inadvertently not transferred into your Trust.

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What is a Durable Power of Attorney for Finances?
This is a really useful document if you become disabled because it can allow someone you choose to handle your financial affairs that are not part of your Living Trust, such as cashing checks made out to you, handling your retirement accounts, filing your tax returns, accessing your safe deposit box, selling a house to generate funds for your family's support, planning to avoid death taxes, etc. Without this document, the person caring for you would have to spend quite a bit of their time (and your money) setting up what is called a 'Conservatorship' and getting a judge's approval before acting on your behalf.

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What is an Advance Health Care Directive?
You may have heard of a 'Living Will' or a 'Durable Power of Attorney for Health Care,' which were earlier versions of this document. In a Health Care Directive you decide in advance such things as whether you'd like to donate any of your organs, if you'd prefer cremation or burial, who you'd like to be in charge of carrying out your wishes, and if it came down to it, if you'd prefer to remain on life support or not.

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What is a “Trust Certificate” or “Certification of Trust”?
A Trust Certificate or Certification of Trust, (also called a “Trust Cert” for short), is a short summary of basic information about your Trust, like the Trust’s name and date, who the Trustees are, etc. It can be used to allow financial institutions to do business with the Trustees of your Trust without the need for the financial institutions to make a copy of your entire Trust document.

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What is Estate Planning?
In the simplest terms, Estate Planning is:
a) Putting in writing the names of the people you would want to take care of your children, your finances and your health care if you couldn't do so anymore (and telling them what you would want them to do); and
b) Using the appropriate legal documents so that in case of death or complete disability, the money you've worked so hard for stays in your family, instead of being wasted on excessive Probate Fees or Death Taxes.

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Should I buy a 'Cheapy' Trust from the Newspaper or the Internet?
This is generally not a good idea. Like most things in life, you usually get what you pay for, and Estate Planning is no exception. Most of the problems with Living Trusts are caused by Trusts that are badly written, do not come with the other documents you need, or do not come with proper instructions for transferring assets into them. It's very important that you meet personally with the attorney who will draft your documents, so you can decide for yourself if he or she is competent and so you can be sure that you will have all of the documents that are necessary to meet your specific needs and goals. Where death taxes are concerned, mistakes can cost your family thousands of dollars. It's simply not worth the risk.

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My friend is a lawyer but does not usually do Probate, Wills or Trusts. Should I have him/her draft a Will for me or handle my Probate?

Think of it this way: would you go to a dermatologist to have open heart surgery? Probate and Estate Planning are specialized areas that require knowledge of not only Wills and Trusts, but also the Probate Court, (which is its own separate court with its own set of rules called the Probate Code), as well as a variety of taxes (i.e., Estate Tax, Gift Tax, Generation-skipping Tax, Income Tax of Trusts and Estates, and Property Tax), Property issues, (e.g., Real Estate, Personal Property, Community v. Separate Property), Retirement benefits, etc. Most attorneys are familiar with some of these legal issues, but only Probate and Estate Planning Attorneys who work with them daily are skilled in all of them.

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Why isn't Joint Tenancy enough?
Joint Tenancy avoids Probate on the first death of a married couple, but does not avoid Probate on the second death or on a simultaneous death. After a first death, using Joint Tenancy with your children can lead to unwanted results such as having to split the value of your house with your child's ex-spouse on your child's divorce, having to sell your house to pay your child's creditors after a car accident, or your child ending up with gift tax problems when he/she gives part of the house to his/her siblings after your death.

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