Frequently Asked Questions
What is the difference between a will or trust?
A will is a written instrument that outlines how your assets are to be distributed at your death. On the other hand, a trust is a written instrument that describes how your assets are to be managed once they have been funded into the trust. This covers what will happen while you are alive, if you become incapacitated, and ultimately upon your death.
Do I need a will?
A will allows you the ability to legally and formally describe how you want your assets to be distributed. By having a properly executed will in place, you are in control of what happens to your assets after your death. Also, if you have minor children, a will allows you a legal way to appoint a guardian for them if you were to die. While assets are distributed according to your wishes, the probate court will need to be involved to ensure that the correct process is followed.
Do I need a trust?
As opposed to a will, a trust allows you to make plans for your assets for while you are alive, while you are incapacitated, and upon your death. In your trust, you can appoint a successor trustee to manage the assets for your benefit during any times of incapacity. This allows you to select someone to manage your financial affairs and avoids court involvement.
In addition to the benefits to you, a trust allows you to protect the inheritance you are leaving your beneficiaries. A trustee can manage the assets and distribute them at certain intervals, upon the completion of certain events, or some other method. It is your choice. Your beneficiaries do not have to receive them outright. This level of protection can help protect assets from a beneficiary’s credits, divorcing spouse, or poor spending habits.
What will happen if I don’t do any estate planning?
If you do not complete any estate planning, most, if not all of your assets will become part of your probate estate. The court will then distribute the assets outright according to state law. There will be no creditor protection for your beneficiaries and you will not get to choose how much each person is to receive, or even who will receive the assets.
Should you become incapacitated for any reason without estate planning, your family will have to petition the court to have someone appointed on your behalf to handle your financial affairs and make medical decisions for you. This can be a costly, time-consuming, distracting, and public process that could lead to infighting with your family.
When should I make changes to my estate planning?
Because our lives are constantly changing, you should review your estate planning every year or so. It is important that you reach out to your estate planning attorney should any of the following happen to make sure that your plan continues to work as designed:
- Death of an individual who has been named as one of your fiduciaries;
- Death of a beneficiary;
- Birth of a family member;
- Change in job;
- Relocation to a new state; or
- The disposal or acquisition of any major asset (house, investment account, etc.).
Is estate planning just for wealthy people?
No. Anyone who has survived to age eighteen and beyond has likely accumulated a few possessions that are of some monetary or sentimental value. While things like your home, car, and financial accounts are self-evident assets, that collection of superhero figurines or your iTunes library also deserve proper attention. There is no minimum asset value required to justify having a Will, especially since there are many low-cost options, including estate planning attorneys who will not charge an arm and a leg for a basic Will.
I am young and don’t need to worry, isn’t estate planning just for older people?
No, estate planning is not just for older people. Any person that wants to protect their family should have an estate plan in place. Tragedy can strike at any moment, and it is best to have your affairs in order so as not to put your loved ones in a financial or bureaucratic bind while they are grieving. Young parents should ensure that proper guardians are in place to take care of their children if they are no longer around, lest the children end up with the most irresponsible member of the family or, worse, a complete stranger.
I have a Will, doesn’t that mean my estate planning is complete?
No, but having a Will is part of the estate plan. Having a Will is smart because it puts you in charge of the disposition of your assets. A Will allows you to pick your executor, designate the guardians for your minor children, and name any individuals and charitable organizations as beneficiaries of your estate. If you were to die without a Will (i.e., intestate), the law of the state where you reside at your death would govern who receives what part of your estate, who administers your estate, and who takes care of your children. There are some situations where state law may override the provisions in your Will (e.g., a spouse’s elective share), but for the most part, you are in the driver’s seat.
However, a Will is only one tool in the estate planning toolbox. There are other vehicles that allow you to remain in control of your possessions and family’s future during life and upon death such as a trust, power of attorney, and advance health care directive. Depending on your situation, a Will alone may not be the most efficient or the most cost-effective means to achieve your goals.
What is a guardian?
There are two kinds of guardians – (1) those appointed to care for a minor child when the child’s parent is unable to do so, and (2) guardians appointed for the care of an incapacitated adult who can no longer make his or her own decisions. Comprehensive estate planning addresses both types of guardians, so that you and your family are fully protected.
Although a guardianship for an incapacitated adult can be avoided by adding proper powers of attorney, and explicit directions for them, to your estate plan, you should always name guardians for minor children. A court will want to make sure the child’s best interests are cared for. The way that you, as a parent, can make your wishes known is to designate a guardian for your minor children in your estate plan.
If the person that would be a great guardian is not good with money, can I still select them?
Of course you can select them to the be guardian for your children. With a comprehensive estate plan, you can “split up” the roles: one person manages the money (the successor trustee) while another person raises the children (the guardian). Sometimes the same people are appropriate for both roles and other times, naming different people is the right thing to do. This is what we call a “counseling issue,” meaning that after we talk it through, you’ll know what decision to make. The people who care for your children day-to-day may or may not be the best fit to manage the finances as well. The responsibilities do require different skill sets. Luckily, your plan can be tailored to your unique circumstances and needs.
I already have (or I’m getting) life insurance to care for my family. Why would I need a will or trust too?
If you don’t have a will, the court will decide who settles your estate and raises your children and state law determines who gets your assets – and it may not be who you think. Most people want to make those decisions themselves.
Additionally, life insurance may provide the money to provide for your family if you’re not able to, but it doesn’t provide any structure, guidance, or protection against waste or financial abuse. When you use a “plain” beneficiary designation, you lose the ability to provide this protection for you family. But, a comprehensive estate plan gives you the opportunity to provide safeguards and protection against waste or abuse. Life insurance can be very helpful component of estate planning, but only when it’s used properly.
How do I name guardians for my children?
Guardians for minor children must usually be named in a will or in a separate guardian nomination document. If you fail to appoint guardians, the court will decide who raises your children. For parents of minor children, this is the most important estate planning decision you’ll ever make.
Even though it’s hard and no one can raise your children as well as you can, move forward and select the guardians you think will muddle through the best. Some people delay estate planning because they can’t make this decision. Don’t do that; your inaction puts your children at risk. And, be sure to name back-up guardians as well in case your first choice is unable to serve if the time comes.
What if the guardians I name for my children can’t serve when the time comes?
This is an important question that many parents forget to ask. It’s essential that you name contingent guardians in your will in case your primary guardians are unable or unwilling to serve if the time comes. Life does indeed change, so be sure to also indicate who get the kids if guardians divorce. Check in with the people you’d like to name to be sure they’re willing and able to serve.
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