» Estate Planning

Why would I want to use an experienced estate planning lawyer to draft my estate plan?

A lawyer does more than make sure the estate planning documents are properly drafted.  An experienced lawyer helps you think about things you might not have considered, including best candidates for guardian, fiduciaries like trustees, executors, and agents under power of attorney, what happens in the event of remarriage, and what to do about pets and problematic in-laws.

Even simple estate plans need to be carefully thought out.  By way of example, imagine a woman with two sons who owns a piece of property worth $400,000 and a savings account with the same amount.  Wanting to divide her property equally between her boys, she hand writes her will, leaving the real property to one son and the savings account to the other.  She puts the will in her fireproof safe and doesn’t give it another thought.  On her death many years later, the real property has appreciated in value to $500,000 while she depleted the savings account, little by little, to $100,000.  One son will be very happy and the other son will be looking for a lawyer.

Words matter, especially when the author will not be available to explain, and an experienced estate planning attorney knows which words matter most.  In California, valid estate planning documents require “dispositive” language that clearly show the testator’s intent.  Words such as “I give” or “the Trustee shall distribute” are examples of such language.  Language that expresses general preferences, wishes or hopes will not be good enough.

If your estate plan is ever challenged, the court will be looking for someone to explain your intentions.  The court will not be able to rely on testimony from self-interested family members.  Testimony from the person who does not benefit from the estate and who had conversations with you while you were alive will be of most value.  That person will most likely be the estate lawyer who drafted the document.

Should I do my own estate plan?

Although DIY estate planning software, websites, and pre-made kits are a dime a dozen, one size does not fit all when it comes to estate plans.  Every state, including California, has its own legal requirements and procedures that must be followed for an estate plan to have legal effect.  If you have minimal assets, do not have any real property, and want to leave everything to your closest living relative, then a DIY estate plan may work for you.  For any other estate, creating your own estate plan carries significant risk.  Whatever you decide, be sure to follow the exact procedural requirements for creating valid estate planning documents in California, including very specific witnessing requirements.  An estate plan is one of the few legal acts that survives death.  Because it will not be tested until you are gone, it is worth doing everything possible to ensure it is done right.

I want to refinance my home and it’s in a trust. Can I?

Yes.  Real property that is titled in a revocable trust (sometimes called a living trust) should not be difficult to refinance.   The mortgage company may require you to transfer the property out of the trust before they will fund the loan.  Make sure that the property is properly transferred back into the trust after the refinance is complete. If you need assistance, JDS Law has the experience to help.

What if my home wasn’t properly transferred into my trust?

You may easily transfer your home into your trust while you and anyone else on the title to the home is living.  If anyone on the title has passed away, the procedure for transferring the property into the trust will vary.  JDS Law has helped trustees successfully petition courts all over California to recognize property as a trust asset.  Contact us for a consultation.

How do I know if my home was actually transferred into my trust?

In order to transfer title to real estate in California, a formal deed and accompanying documents must be recorded with the county recorder’s office in the county in which the property is located.  You should have received a copy of the recorded deed.  If you did not, you can search county records by assessor’s parcel number or property address to confirm that a valid deed was properly recorded. If you have concerns that your home may not have been properly transferred to your trust, consult an experienced estate planning attorney for guidance.

How often should I update my trust?

You should update your estate plan whenever you have a major life change, such as a birth, death, marriage or divorce, or whenever there is a major change in the law affecting estate plans.  It is also a good idea to review your estate planning documents every three to five years to make sure they still meet your goals.  JDS Law will review your existing estate plan and give you customized recommendations for updates if needed.

Do estate planning documents need to be notarized?

Some documents, such as powers of attorney and property deeds, must be notarized while others need to be witnessed or just signed and dated. JDS Law provides notary services, which are generally included as part of our estate planning packages.

Who should I name as the person to administer my affairs if I cannot?

You want to nominate someone you trust that would act in your best interest and in the best interest of those you care about.  Many times the choice is obvious, but sometimes it is not.  The right person to make medical decisions on your behalf may not be the same person you would want to handle your financial affairs.  The best person for your children to live with may not be the best person to manage their inheritance.  JDS Law is equipped to walk you through the process for selecting the people who will carry out the plans you make.

My significant other will take care of our children. Shouldn’t I just leave everything to him/her?

With estate planning, you must consider the various scenarios that may happen after your death and the impact on your planning goals. What if your significant other marries? What if s/he has more children? What if you are concerned about minimizing tax burdens? Sometimes it makes sense to leave everything to your significant other outright and free of any restrictions, and other times a more nuanced approach is required.

My only asset is my home. Do I need a trust?

If the home is located in California, you may benefit from a trust, even if the home is your only asset.  If you have more than one beneficiary who will inherit the home, or if minor children are involved, you will most likely want a trust.  If your only asset is the home and you have only one beneficiary you want to inherit the home, there are other alternatives to consider, including a Revocable Transfer on Death Deed.

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