Gallinger Law has provided estate planning services for many families and although our services are tailored to your needs, there are frequently asked questions that many people have. We hope this FAQ article can answer some of those questions for you. If you have more specific questions, we suggest you schedule a free 20-minute virtual consultation with attorney Todd Gallinger who can answer your questions and guide you through the process.
Estate Planning
What is estate planning?
Your estate consists of the property, valuables, and investments that you own. Good estate planning establishes a way to preserve your assets for your beneficiaries using Wills and Trusts. It may also include Health Care Directives and Powers of Attorney to ensure your wishes are upheld and your estate managed if you become incapacitated.
Does everyone need an estate plan?
Yes. In California, Probate Code provides that probate estates of $166,250 or less do not need to be probated. In practice, that means anyone with real estate will need to go through the probate process. Even if you’re net worth is modest, establishing an estate plan helps ensure that your property goes to the people you choose, avoiding disputes between your children or other heirs.
What are the documents in an estate plan?
As mentioned, each person’s situation is different, but in general, an estate plan should include a properly prepared Will, an Advance Health Care Directive, a Power of Attorney for Financial Administration, and a Trust.
Probate
What is probate?
Probate is the court-administered process for closing out an estate after the owner’s death. Probate includes determining the value of the estate, identifying outstanding bills and debts and paying them off, paying any estate taxes, and, finally, distributing the balance of the estate to the heirs.
Can I handle probate myself?
Probate requires a thorough collection of information on the estate, filling out tax forms and other forms, and communicating with the probate court. An estate planning attorney experienced in probate can ease your burden; prepare the paperwork for you; and, in general, help ensure that you comply with all relevant aspects of the probate laws. Your family will be grieving your loss and adjusting to your absence. It can be difficult for your family to process their loss while also navigating the legal process. That is one of the major reasons we suggest preparing and establishing your estate plan now.
How long does probate take?
For most estates, probate can be completed within nine months. Large or complicated estates or estates with poor record keeping might require more time.
Wills
Do I need a lawyer to draft my Will?
A Will should cover all aspects of your estate and potential contingencies. Its language must be clear and unambiguous and might need to incorporate specific legal terms to comply with estate law. The experienced estate planning lawyers at Gallinger Law in Long Beach can draft a Will that should withstand contest. He or she may also raise considerations regarding your estate that you might not have thought of yourself.
What happens if someone dies without a Will?
Without a Will, the wishes of the deceased are not documented legally and cannot be followed. The probate court will determine how the property will be distributed based on California laws of intestate succession. In general, close family members may receive assets based on certain criteria.
What are the responsibilities of an executor?
The job of the executor is to manage the estate through probate and to distribute the estate as expressed in the Will. This includes paying outstanding bills and debts, filling out probate and other forms, notifying life insurance companies, and communicating with the heirs to ensure they receive their inheritance once the estate is settled.
Trusts
What is a Trust?
A Trust is a relationship in which property is held by someone (the trustee) for the benefit of another (the beneficiary). Trusts can be an effective way to:
- preserve wealth
- provide tax advantages
- avoid probate.
The beneficiary of a Trust receives income from investments, but the principal stays intact during the existence of the Trust. There are many types of Trusts: Some last indefinitely, but others can be revoked by the person who created them. An experienced Trust attorney can review your situation and recommend and prepare an appropriate Trust.
How is a Trust different from a Will?
A Trust takes effect as soon as it’s created and can be used to distribute property before or after you die. But it can only distribute property you’ve placed in the Trust. A Will, on the other hand, covers all aspects of your estate and becomes effective only upon your death. Although a Will can grant a specific amount or percentage of the estate to an heir, the Will cannot put restrictions on that inheritance. For example, you cannot specify in your Will that a grandchild must complete college in order to receive an inheritance. In a Trust, however, you can do so.
Can I use a Trust to support a disabled child?
Yes. You can set up a special needs Trust and specify that the income be used to support a disabled or special needs child throughout the child’s lifetime.
Health Care Directives and Powers of Attorney
What is a Health Care Directive?
This is a legal document in which you express your health care wishes if you become unable to participate in health care decisions yourself.
What is Power of Attorney?
Power of attorney is a legal document in which you assign someone to handle certain aspects of your affairs if you become unable to handle them. Just as there are different kinds of Trusts, there are also different Powers of Attorney that govern health care and finances.
To whom should I assign my Power of Attorney?
Power of Attorney is an important responsibility that can significantly affect your life and your estate at a time when you are most vulnerable. You carefully should consider whom you designate. It should be someone you Trust — someone who has your best interests at heart. Many people choose their spouse, a child, or a longtime friend.