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WHY DO I NEED A WILL OR TRUST?
If you have assets that you wish to pass on when you die and specific people you wish to make sure receive those assets you should have aWill or a Trust. A Will or Trust will designate your assets, your heirs, and when and how your heirs will receive your assets after your death.
Because the trust, and sometimes a will, identifies your assets, it will provide your children or other heirs with a list of items that need to be transferred. Without that list they may be unaware of everything you own. If they are not aware of the assets they cannot be collected and the asset may be lost.
Without a Will or Trust, you lose control over who will receive your assets. If you’re only heirs are your spouse and children or your parents, the intestate laws of the state of California may provide for automatic distribution to the heirs of your choice.
If you are not married but wish to provide for a companion or partner, a will or trust is absolutely necessary. Otherwise your partner or companion will receive nothing unless you have given it to them before you die. Similarly, if there is a person, who is not related to you, but who you wish to receive a share of your estate, you would either need to transfer that share before they you die or through a will or trust.
If you wish to disinherit one child, or limit that child’s access to his or her share of the estate, this can normally only be done through a will or trust.
WHAT IS THE DIFFERENCE BETWEEN A WILL AND A TRUST?
There are three main differences between awill and a trust. First, a trust is significantly more expensive to prepare than a will. Second, a Will must go throughprobatewhile a Trust can be managed and distributed without involving the Court. Third, costs and attorneys fees are usually much greater inProbatethan with a Trust. Last, probate will take a minimum of six months to complete distribution to your heirs. Distribution from a trust can take place in a much shorter period of time.
In some special circumstances, a parent may wish to limit when and how their children or heirs will receive their estate. Although both documents will allow you to limit when and how your children will receive their share of your estate, a trust provides a greater degree of flexibility and is much more cost-effective.
CAN I PUT MY HOUSE IN JOINT TENANCY WITH MY CHILDREN INSTEAD OF USING A TRUST?
Yes in most circumstances you can use a joint tenancy instead of a will or trust. This is not a course of action that we recommend. The problem with the joint tenancy is that you have divested your at self of your assets in your rights to your property before you have died. In other words, the joint tenancy gives the new joint tenant rights and control over your property which you may not wish to give them before you die. There are also some tax implications by use of the when using a joint tenancy. If the joint tenancy is used pass real property that has gone up in value since the property was purchased, allowing the property to pass through a will or joint tenancy will provide significant tax advantages to your heirs.
WHAT WILL HAPPEN IF I BECOME SICK AND I CAN NO LONGER TAKE CARE OF MYSELF?
When an adult becomes incapacitated their care and finances will either be managed by a family member or friend appointed in aDurable Power of Attorney and an Advance Health Care Directive.
If an incapacitated adult has not executed a Durable Power of Attorney and an Advance Health Care Directive, the court will appoint a Conservator to manage your finances and healthcare. Once the Conservator is appointed, the court will manage and supervise the Conservator’s efforts on your behalf. Court costs and attorney’’’s fees associated with a conservatorship can be significant.
WHO WILL TAKE CARE OF MY CHILDREN IF I DIE?
The court will appoint a Guardian to make the decisions necessary to protect the child, manage the child’s finances and healthcare health care part of yourestate planningpackage should include a nomination identifying the person or persons you wish to take care of your children and manage their finances.
DO MY CHILDREN HAVE TO PAY MY DEBTS WHEN I DIE?
Your creditors cannot force your children to pay for your debts. This it does not mean that your debts disappear. Your estate is still responsible for your debts. Their children should not receive any portion of your estate until those deaths have been paid or settled.
WHY DO I NEED A LAWYER TO HELP ME WITH MY WILL OR TRUST?
A lawyer’s job is to make sure that you understand all of the potential problems that may arise when you die and that you have address those problems before you die. These concerns include making sure that you have the rightwill or trustfor your estate; that you have taken care of your minor children; problems with dependent adults; issues which may arise with respect to adults who are dependent upon alcohol or drugs; your own end-of-life decisions and funeral arrangements; your healthcare and management of finances in the event that you are unable to care for yourself.
Wills and trustsandestate planningin general are a fairly complex area of law. Having a professional both educated licensed and insured to assist you in these matters is an important step in the process of creating a complete estate plan that protects you and your heirs.
Didn’t find the answer to your question?
Randal P. Hannah
Attorney at Law
489 N. Central Ave.
Upland California 91786
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. Prior results do not guarantee a similar outcome.