Westlake Village Wills & Trusts Attorney
Helping California Residents Navigate the Estate Planning Process
Confronting our mortality is never easy. Although it may seem daunting, proactively drafting items such as a living trust and last will and testament allow you to secure your legacy and provide for your loved ones in the event you pass on or become incapacitated.
Drafting an effective living trust or will can be challenging. Understanding how to develop a comprehensive living trust and will can help you approach the process with more confidence.
At the Law Offices of Jeffrey S. Graff, I have over three decades of experience helping clients tackle estate planning-related legal matters such as establishing living trusts and wills.
To arrange a free consultation, contact me onlineor give me a call at (805) 633-4999.
Living Trusts & Wills—What's the Difference?
Living trusts and wills both allow an individual to dictate how their property is split amongst loved ones after their death, or in the event they become incapacitated and can no longer make such decisions for themselves.
When it comes to estate planning, most people have only heard of a last will and testament. However, many people are unaware that wills are actually fairly challenging to execute. Once a person dies, if they have a will, the will goes through probate.
During probate, a court tries to ensure that the decedent's (the deceased individual's) property or assets are split amongst beneficiaries (those inheriting the property or assets) in accordance with the will. In some states, the probate process is reasonably straightforward. However, in California, the probate process is more rigorous than in many other states for a variety of reasons, one being the state doesn't abide by the Uniform Probate Code, so making sure the beneficiaries comply fully with the decedent's wishes is essential.
Living trusts allow individuals to avoid the probate process entirely. If you set up a living trust, you can grant various assets or property ownership to beneficiaries while you are alive. In a living trust, the individual responsible for carrying out the will is named the "trustee." You can name yourself trustee if you wish, or grant someone else the role. Executing a living trust doesn't require going through probate, making it less expensive and more effective for property and asset distribution.
However, the living trust has less power in several areas than a will. For example, you can't establish guardianship for your children or specify how any taxes or debts you have should be paid in a living trust. These provisions, as well as other stipulations such as naming an executor for your estate or appointing a manager for your beneficiaries' property, must be done using a will.
For this reason, most estate planning attorneys recommend that clients draft both a living trust and a last will and testament. The living trust allows property and assets to be distributed painlessly, while the will acts as an essential secondary measure to ensure your legacy is secured and your loved ones are provided for post-mortem.
If you want to establish a living trust, there are some things you should be aware of. Here's what you can expect:
- You'll need to choose whether you want a revocable or irrevocable trust. A revocable trust allows you to retain control of assets in the trust even after you create it, giving you more control. With an irrevocable trust, you permanently sign away assets you place in the trust. Taxes on an irrevocable trust apply to the trust, while taxes on a revocable trust apply to you.
- You'll need to choose whether to establish a joint or single trust. If you have a partner or spouse, a joint trust allows you to include marital or joint property in the living trust. In a single trust, you can only include separate or nonmarital property.
- You'll need to collect documents and name a trustee. You need to gather any documents necessary to prove your beneficiaries own the property or assets you transfer to them. I mentioned establishing a trustee earlier—a wills and trusts lawyer can help you with this process.
- You'll need to draw up the trust, sign it, and transfer the property. You should retain an experienced estate planning attorney to help you execute these steps, which will finalize the trust.
- Your living trust is a private matter. Only you, the trustee, and anyone else directly involved in the trust will be aware of it.
Working with an estate planning lawyer throughout the process of drafting your living trust is vital. An attorney can help you understand how the trust will impact you and beneficiaries, as well as how the trust may affect your taxes or finances.
What Should I Know About Wills?
Your last will and testament allows you to provide stipulations for anything you fail to cover in your living trust. Earlier, I mentioned several items that can only be stipulated in a will, such as guardianship for children or managers for property. Here's what you can expect from the will:
- The process of drafting a will is slightly more complicated. Unlike living trusts, which require a notary signature, wills require witnesses. For this reason, hiring an attorney who can act as a witness and help you fill out your will correctly is vital. You should also avoid a holographic (handwritten) will if possible.
- The will passes through probate when you pass on. I mentioned the probate process earlier, but it's often the most expensive and contentious aspect of executing a will, particularly if beneficiaries disagree with the will.
- The will becomes public record. Unlike trusts, wills are a matter of public record.
Both wills and trusts are vital aspects of the estate planning process. No matter your age, health, or station in life, drafting a living trust and last will and testament can help you provide for your loved ones and secure your property and assets.
For over 35 years, I've been helping California residents draft and execute living trusts and wills.
To contact my firm and receive a free consultation from a Westlake Village wills and trusts attorney you can trust, contact my office onlineor via phone at (805) 633-4999.