What is an Estate Plan and Why Do I Need it? (Part II)
An estate plan is a set of typically four documents in which you get to make some decisions and create a legal document in order to preserve and protect your choices of what happens to you and to all of your stuff if you can’t manage it due to a disability or if you pass away. Based on these two occurrences (Disability and Death), you need certain documents to protect yourself and your loved ones. Part I of this blog series discussed disability. Part II discusses the other two documents that handle the assets in your estate after your death.
What happens if you pass away? Unlike a disability, there may be no urgent decisions regarding your stuff that need to be made right away. However, there are other things we should all consider. For example, is my family able to take care of themselves financially or will they need someone to help with financial decision making? Who will take care of my minor children after I die? Is there someone related to me that I do not want to receive anything from my estate?
If there is no estate plan in place in California, you are considered to have died “intestate.” If someone dies intestate, the laws of intestate succession determine who are your “heirs,” the individuals who will inherit your assets for any property not otherwise covered by a type of nonprobate transfer such as joint ownership with right of survivorship, a beneficiary designation, or a revocable trust. For any property not passing to the surviving spouse by operation of law, your heirs may have to spend time and money to obtain Court approval before they receive their inheritance. This occurs in a process called Probate.
Probate can be an expensive and long process. It usually takes up to a year, or sometimes even two years or more such as when family members fight over who gets what. During that time, your assets, which you intended to be left to your loved ones, are reduced by the costs and fees arising from the proceedings. Probate also is a public proceeding. That means anyone can look up the information from the probate proceeding. The Court also won’t be able to consider any of your wishes when it comes to what to do with your estate. If you want something such as different parts of your estate to go to different children, or you want to give some of your assets to a friend, a favorite charity, or a religious organization, and you have no estate plan in place, the law will not take any of your wishes into consideration.
Estate Planning for Death
There are two key documents you need when it comes to planning for your death. These are the third and fourth documents typically found in a complete estate plan when someone has real property assets or minor children.
The third document in your estate plan is a Revocable Trust. You can imagine your trust is similar to a wall safe. You keep all your valuable assets in a trust just like you would a safe. As long as you are alive, you hold the key to your trust and you can take things out and put things in as you wish. Instead of the Court deciding who gets your estate according to the law, you get to choose who gets the keys along with a set of instructions from you on what to do with your stuff. This allows you to be in control of what happens to your assets and, you get to choose who gets what and perhaps more importantly, who doesn’t get anything. Having a revocable trust also makes the process of transferring everything much quicker and usually cheaper, saving your family undue stress and anguish.
The fourth and final essential document in your estate plan is your Will. A will is still very important, because a will can do things that the other documents cannot. For instance, a will, or a stand-alone guardianship nomination document, is where you nominate a guardian for any minor children and decide who should raise your children in the unfortunate circumstance when both parents die. A pour over will also makes sure that anything left out of your trust will be poured over into the trust so that you can still remain in control of what happens to your things.
Overall, having an Estate Plan puts you in control, not the Court. You can choose to do what you wish with your assets after you die, such as delaying outright distribution to your children until they reach 35 or even setting up a pet trust for the benefit of a beloved companion animal. An estate plan offers peace of mind knowing that you are covered should you become disabled, and that your family’s future will be more secure after you pass away.
If you don’t have an estate plan in place, I recommend you look into getting one as soon as possible. Do some research and learn more about estate planning, but most importantly, speak with a qualified lawyer.
This blog provides a general overview of estate planning based on current California law. Each individual estate planning situation requires an independent analysis of the specific facts and circumstances involved. [Disclaimer]
Our estate planning team at Naimish & Lewis can advise you on estate planning, trusts and estates administration, and probate related matters such as probate administration, conservatorship and guardianship. To schedule an initial consultation with an attorney at our firm, please contact us.