By having a valid Will, you are able to name a person who will take responsibility for taking care of your children and to manage the child's assets that were distributed to him or her as a function of the Will. You can also name a person (an executor) to distribute your assets as provided for in the Will as well as make payments for your estate's debts and expenses.

When a Testator desires to make any changes to his Will, he cannot simply cross out and add provisions. A Testator can change his Will through a codicil or an amendment or through drafting a whole new Will.

Once a subsequent Will has been executed, the language in that Will revokes any prior Will or codicil. Other forms of revocation include physical destruction of the Will document with the accompanied intent to revoke, by the Testator, or a person in the Testator's presence at the direction of the Testator.

If you pass away without a valid Will, you are termed to have died "intestate." In such event, the laws of the State of California dictate how your property is distributed. For example, your property will be basically distribute as follows. If you are married at the time of your death, your surviving spouse will receive 100% of your community property and a portion of your separate property with the rest of your separate property distributed among your children, grand children, parents grand parents, brothers and sisters, nieces and nephews or other relatives. If you are not married at the time of your death, your estate will be first distributed to any children you may have, then to grandchildren, then to any living parents, siblings, nephews or nieces and finally to other relatives who may be close.

In California, assets acquired by you and your spouse or by you and your registered domestic partner during your marriage or domestic partnership is considered community property. As such, your Will can only dispose of your half of the community property - the other one half of the property remains that of the other spouse or partner. Separate property is property, real or personal, that is acquired prior to the marriage or domestic partnership or that was received as a gift, inheritance, or devise during the marriage or domestic partnership by only one of the partners or spouses. Separate property can be distributed as the owner of such see fit.

Your executor as well as trusted relatives and close friends need to know where the Will is located, which should be a safe place like a fireproof safe or a safe deposit box at a bank. No one really needs to know the content of the Will, aside from the drafting attorney.

If you so desire, you can leave your assets to a Trust that either can be created at your death or prior to that event as a "living Trust." If you create a living Trust, your Will is considered a "pour over" Will in that whatever property is not specifically devised will "pour over" into the Trust to be administered according to the terms and conditions of the Trust.

No, a lawyer is not required to draft a Will. In fact, the California state bar provides a "fill-in-the-blank Will for smaller estates. However, if your estate is larger, you may need counsel regarding tax consequences and to help you understand the many ways your property can be transferred to your beneficiaries. A lawyer can also oversee the signing of your Will to ensure your Will is enforceable.

No. Some assets that are not distributed by a Will include benefits from life insurance policies and retirement plans, since these forms of property have dedicated beneficiaries. Property you own as a "joint tenant" like vehicles, real estate and bank accounts generally have provisions for their distribution to the surviving tenant at your death outside the directions of your Will. For example, a bank account that is termed a POD or "payable on death" account is paid to the surviving tenant upon your death regardless if you have a Will or not.

Trusts

A revocable living Trust or a revocable inter vivos trust may be amended from time to time by the grantor or person who created the Trust given that the grantor is competent. This type of Trust is basically an agreement in writing between the person who created the Trust and the individual named to manage the Trust assets in order to control and manage the assets in the Trust. In a living Trust, a "trustee" is given the authority to dispose of assets in accordance with the Trust provisions. The Trustee is considered a "fiduciary" of the Trust who is held to a position of trust and responsibility that is oftentimes higher than the level one has when dealing with their own property.

A primary reason to have a Living Trust is to escape court oversight. For example, if you become incapacitated and cannot handle your property, the trustee will assume your role in doing so. When you die, your trustee acts much like an executor in a Will and can distribute Trust assets according to how you have directed in the Trust document.

Generally speaking, the more assets you have the greater need for a Trust, especially if you have real estate. Additionally, if you are at risk to become disabled or incapacitated, a Living Trust will likely be beneficial in escaping court intervention.

If you become incapacitated, the trustee of your Living Trust will assume the responsibility for your assets. If you are the Trustee and become incapacitated, the individual or entity that you have named as your "successor Trustee" will step in and assume managerial responsibilities of the Trust assets. This is highly preferred to a conservatorship that is put in place in the event of incapacitation. A conservatorship is court proceeding that is put in place to manage your property in the event of your incapacity and is generally costly, public and less flexible than a Trust.

When you die, and you have a Living Trust, the Trust assets are distributed outside the management of a probate court, and based on the provision of the Trust you created. Your Trustee or Successor Trustee is responsible for the distribution of the Trust assets. If you did not have a Living Trust in place at your death, your property would be subject to probate, which is a legal process in which the courts transfer your assets in accordance with your Will. Probate is generally more costly and time consuming than asset distribution through a Living Trust.

It is very common for a person to choose himself as a Trustee until death or incapacity. To take over at your death or incapacity, you should choose a person who is trustworthy like a spouse, an adult child or another relative or family friend. Or, you may choose a professional like a bank. Consideration should be taken regarding the ramifications of naming certain individuals over others.

Yes. For example, there are irrevocable Trusts that, upon their inception, cannot be altered. Such Trusts are ILITs or irrevocable life insurance trusts that are set in place to fund a life insurance policy on the grantor that will be payable to a beneficiary. Charitable trusts and trusts for children are also examples of Trusts that are irrevocable. Since minor children or those who are incapacitated require oversight in managing assets, trusts created to benefit these individuals need special provisions to safeguard against the erosion of trust assets.

Once a Trust is established, assets need to be transferred to the Trust. In order to maintain the separate or community characteristics of the property put into the Trust, the property must be designated as either separate or community as it is added. It is important that you choose a well-qualified estate planning lawyer to draft our Trust documents since careful drafting will ensure your wishes will be carried out as intended.

The cost of establishing a Trust will vary since no two estates are identical. Some of the work a lawyer does to create your Trust includes a review of your current Will and assets and consultation about what you want to accomplish by establishing your Trust and the correct vehicles for doing so. Be careful when choosing a Trust lawyer since the Trust documents will be legally binding. You need to feel comfortable with your Trust lawyer since the document he or she will prepare could likely be the most important documents you will sign.

Call the Experienced Attorneys at Smith & Garg Today

If you are planning your wills, trusts and estates in the Long Beach area, in the Los Angeles area, or in the Orange City area, contact the experienced and dedicated Wills, Trust and Estates attorneys at Smith & Garg for a consultation. The process in the State of California can be very complex. If you do not have the assistance of an experienced attorney, you are definitely at a disadvantage. Contact Smith & Garg today to schedule a consultation.

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