Frequently Asked Questions
Read our FAQs
What can a Revocable Living Trusts Do that a Will can’t?
- Avoid a conservatorship and guardianship. A revocable living trust allows you to authorize your spouse, partner, child, or other trusted person to manage your assets should you become incapacitated and unable to manage your own affairs. Wills only become effective when you die, so they are useless in avoiding conservatorship and guardianship proceedings during your life.
- Bypass probate. Property in a revocable living trust does not pass through probate. Property that passes using a will guarantees The probate process, designed to wrap up a person’s affairs after satisfying outstanding debts, is public and can be costly and time consuming – sometimes taking years to resolve.
- Maintain privacy after death. Wills are public documents; trusts are not. Anyone, including nosey neighbors, predators, and unscrupulous “charities” can discover the details of your estate if you have a will. Trusts allow you to maintain your family’s privacy after death.
- Protect you from court challenges. Although court challenges to wills and trusts occur, attacking a trust is generally much harder than attacking a will because trust provisions are not made public.
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.
Disclaimer: The attorneys at Hermance Law, A Professional Corporation, are licensed to practice law solely in California and meets with clients by appointment only. Nothing in this website should be taken as engaging, or offering to engage, in any activities in any jurisdiction where those activities would constitute the unauthorized practice of law or would otherwise be unlawful or improper. The materials appearing on this Website are provided for informational purposes only and do not constitute legal advice. You should not take action based upon this information without consulting legal counsel. This site is not intended to create an attorney-client relationship. The hiring of a lawyer is an important decision that should not be based solely upon any single source of information, including advertising on this Website.