Estate Planning Information Sheet
Estate Planning is the most essential aspect of determining who, how and when your listed beneficiaries will inherit your assets. A highly proficient and experienced estate planning lawyer can help you with this process.
Due to the complex considerations that must be taken into account such as taxes, business succession and naming competent executors or trustees, it’s imperative that you choose a knowledgeable attorney for guidance. Our Estate Planning Attorneys at the Law Offices of Robert M. Baskin can provide the guidance you need.
Whether you want a will drawn up, want to place your assets in a trust, or utilize a combination of estate planning devices, we are here for you. Please contact the Law Offices of Robert M. Baskin at (805) 658-1000 to schedule a confidential, in-office consultation with the region’s leading Estate Planning Lawyer.
Introduction to Estate Planning
There are numerous decisions to be made when drafting your Estate Plan. Depending on the valuation of your assets including monetary holdings, land ownership, business interests and other factors, your estate plan may either be simple or extremely complicated.
Estate Planning is comprised of several different means of transferring assets, either during your lifetime, upon incapacitation, or death. The following are the most utilized estate planning devices:
Wills: Wills are designed to pass your assets after death. They must be filed with the probate court upon death, and are available to the public.
Trusts: There are numerous types of trusts, and each serves a different purpose. They may be utilized to keep your assets protected during your lifetime, to pass on assets during your lifetime or after your death, and they may incorporate a will. Trusts are not available for viewing by the general public, do not have to pass through probate, and typically incorporate tax advantages to protect your assets for future generations.
Wills in California
There are several types of wills formally recognized as valid in the state of California. These include the following:
- Attested Wills
- Holographic Wills
- Pour Over Wills
- Statutory Wills
Attested Wills are those which are signed by the testator (the person who executes a will.) They must be signed and dated in the presences of witnesses, and include a statement that the testator has the legal authority to execute a will. This means that the testator understands what they are signing, they intend to execute their will, and are of sound legal mind.
Holographic Wills must be written out by the testator, in his or her own writing. While there is no witness requirement, the testator must be of sound mind and demonstrate their intent to create a will in order to be held valid by the probate court.
Pour Over Wills are those which are incorporated as part of a trust. To be found valid, they must be executed prior to, concurrent with, or within 60 days of executing a trust.
Statutory Wills consist of pre-printed forms that comply with California’s probate laws. There are blanks which must be filled out by the testator. When executed (signed), there must be a minimum of two witnesses present and the document must be dated. As with attested wills, they must include a statement that the testator is of sound legal mind and set forth the intent to execute a will.
California Trusts
Trusts are utilized to pass on assets to your chosen beneficiaries outside of the constrictions of probate. Under California Law, there are several different types of trusts which each serve different purposes. Individuals for whom trusts are drafted must make numerous decisions when choosing the proper type of trust, and they may incorporate numerous types in their estate plan. Some examples include:
Charitable Trusts – Named charities designated to receive monies or assets
Educational Trusts – Set up to provide for the educational needs of named beneficiaries
Irrevocable Trusts – Go into effect during the drafter’s lifetime
Life Insurance Trusts – These make the trust the beneficiary of a policy
Living Trusts – Places your assets under control of the trust during the drafter’s lifetime with assets to pass to named beneficiaries upon death.
Special Needs Trusts – Provide for a disabled drafter to receive public assistance benefits by placing their assets into this type of trust.
Spendthrift Trusts – Utilized to dole out a set amount of assets on a stated basis or as needed basis for beneficiaries who are fiscally irresponsible in the eyes of the drafter.
Every trust serves a distinct purpose. Due to the intricacy inherent in creating trusts, it’s extremely important that you utilize the services of an experienced and skilled Estate Planning Attorney.
Business Succession
If you are the owner or possess an ownership interest in a business, it is essential that you create a business succession plan when establishing your Estate Plan. The primary goal with a business succession plan is to ensure continuing, uninterrupted business operations, fiscal success and minimization of taxation should you choose to retire, become incapacitated, or upon death.
There are numerous taxation considerations which must be taken into account when establishing a business succession plan. Whether you choose to pass on your ownership interest during your lifetime or after your incapacitation or death, a seasoned Estate Planning Lawyer can guide you through this process.
Trust Administration
Trust Administration is the process by which the named trustee must inventory the trust assets, obtain appraisals where necessary, pay the trust debts and distribute the remaining assets to the beneficiaries.
Trustees owe beneficiaries a fiduciary duty to always act in their best interests, as well as ensure that the goals of the testator are carried out. Failure to follow legal requirements, engaging in self-dealing, or refusal to comply with the testator’s intent are all actionable and may result in the trustee being replaced. If a trustee is found to be in breach of their fiduciary duties, they may be held personally liable for any resulting harm to the beneficiaries.
Probate
Probate is the legal process by which a will is filed with the court upon the individual’s death. The will must be validated, and the court will oversee payment of debts and the distribution of assets in conjunction with the named executor. If the executor cannot or will not carry out their duties, the court will appoint an appropriate executor.
An expensive and time-consuming process, it may take anywhere from a few months to several years to settle an estate through probate. The more extensive the assets, the more costly probate will be. This is because probate fees charged by the court are based in part on the value of the estate.
If the probate court accepts the validity of the will, the case will move forward according to the wishes of the decedent. If deemed invalid, the court will look to see if a prior will was executed and may be validated. If not, all of the decedent’s assets will pass under the laws of intestacy in the state of California.
Assets may pass outside of probate if held in joint tenancy with right of survivorship. Examples include property held in joint tenancy, where the last survivor takes the entirety.
Probate cases are a matter of public record. For this reason, many choose to establish trusts that incorporate a will to maintain privacy and protect assets.
