Being a Legal Document Assistant, I am able to assist people in the preparation of their Living Trusts. For further information, click here, or contact me anytime.
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A Living Trust is important to have for many reasons. One of the most important reasons to have a Living Trust is to avoid probate.
Probate proceedings are legal proceedings, that are a matter of public record, and are used to wind up a person’s legal and financial affairs after death. In California, probate proceedings are conducted in the Superior Court for the county in which the decedent lived. A “normal” probate process without any glitches can take about eight months. Some probate proceedings have been known to go as long as several years.
Dying Without a Will or a Living Trust
When someone passes away without a will or a Living Trust, than that person is said to die “intestate.” If this person dies owning property that is subject to administration in the probate court, than a probate proceeding will begin.
Since this person has left no instructions on how they would like their estate distributed (through a will or Living Trust), the court will follow state statutes in administering and distributing the person’s estate.
The government’s estate plan is called “Intestate Probate” and guarantees government interference in the disposition of your estate. Documents must be filed and approval must be received from a court for all major decisions – and it all takes place in the public’s view. If you fail to plan your estate, you lose the opportunity to protect your family from an impersonal, complex governmental process that can become a nightmare for your family.
You and your family may not agree with the state statutes, and the government’s handling of your estate. But if you pass away with no written instructions, then the government/court system will be involved in the distribution of your estate.
Dying With a Will
Simply put, a will provides instructions for probate. Although this is better than having no instructions for probate whatsoever, the decedent’s family will still have to go through the entire probate proceedings.
As a reminder, probate is a public matter, the proceedings are a part of public record, and anyone can come forward during probate and argue the validity of the will and/or make claims against the estate.
Once your will enters the probate process, it’s no longer controlled by your family, but by the court and probate attorneys. Probate proceedings, without any “glitches” can take approximately 8 months.
If there are any complications during probate, than the process can take as long as two years or more to complete.
Furthermore, California Probate Code section 10810 sets the maximum statutory fees that attorneys can charge for probate. As an illustration, fees start at four percent of the first $100,000 of the estate, and continue from there.
Dying with A Living Trust
When properly written and funded, a Living Trust will avoid probate.
A Living Trust avoids probate because your property is owned by the trust, so technically there’s nothing for the probate courts to administer.
A well-written Living Trust will also include protections for you while you’re still alive. For example, a Living Trust will include a plan for the possibility of your own incapacity, control what happens to your property after you are gone, prevent your financial affairs from becoming a matter of public record, can be amended at any time, includes Powers of Attorney, health-care directives, and much, much more!
Also note that even with a Living Trust you should still have a complementary will (known as a “pour-over will”; this type of will makes sure that any assets which may not be in your Living Trust at the time of your death “pours-over” to the trust so everything is distributed pursuant to the terms of your Living Trust.
For more information on how a Living Trust may benefit your family, click here.
Contact me today to learn more about the benefits of getting a Living Trust started today!
*The articles on this blog are for education and entertainment purposes only and should not be taken as financial or legal advice. See legal disclaimer for further information. If you would like more information about how something listed in any of my posts specifically affects you, please feel free to comment below, email me, or call me anytime.