Wills and Trusts in California
Wills and trusts are legal documents that are typically included in an estate plan. Whether you will have a stand alone will or a trust with an accompanying pour over will depends on your preferences and intentions. Either way, you should consult with a knowledgeable and experienced wills and trusts attorney as both, wills and trusts, have legal requirements that must be met in order for the will or trust to be enforceable.
Last Will and Testament
A will is a legal document that this created by a person and directs what will happen to their assets after death. The person creating the will is referred to as the Testator. Generally, for a will to be effective, it must be signed by the Testator and be acknowledged by two witnesses unrelated to the Testator. In certain circumstances, a handwritten will may be effective. However, it is not advisable to attempt to handwrite a will without first consulting a knowledgeable estate planning attorney familiar with the legal requirements of wills.
According to the California Probate Code, when a person dies with a will and their assets total $150,000 or more, the probate court will oversee the administration of the will. The Testator will nominate an executor, in the will, who will be responsible for marshalling assets, paying creditors and distributing the remaining assets according to the terms of the will. Most of the documents in a probate will become public record after they are filed with the probate court, including the distribution of assets. It is imperative that you you speak with an estate planning attorney if you are considering a will as part of your estate plan to ensure that your estate will be distributed according to your intentions.
There are several different types of trust instruments. The most common is the Revocable Living Trust. A trust is essentially a separate entity in which the person creating the trust, known as the settlor, transfers assets, which are then held for the beneficiaries of the trust. The settlor transfers legal title of the assets to a Trustee who holds the assets in trust for the beneficiaries. Most often, the settlor is the Trustee during their lifetime. The settlor will appoint a successor Trustee who will administer the trust according to the terms of the trust after the settlor passes away.
There are several benefits for creating a trust. The distribution of assets held in trust are not typically overseen by the court. This avoids the high costs associated with the probate process and also keeps the distribution of assets private. There also may be several tax advantages to holding your assets in trust.
Pour Over Will
Most estate plans also include a pour-over will when there is a revocable living trust. A pour over will directs the Executor to transfer any assets, not held in trust, to the Trustee who will then administer according to the terms of the trust. For a more in-depth understanding of trusts and to decide if settling a trust is right for you, contact a wills and trusts attorney at Arata, Swingle, Van Egmond & Heitlinger.
Our Firm’s Wills and Trusts Practice
The wills and trusts attorneys at Arata, Swingle, Van Egmond & Heitlinger have knowledgeable and practical experience drafting wills and trusts. Our attorneys keep current on the law surrounding wills and trusts. One of our experienced and knowledgeable wills and trusts attorneys will work one to one with you to draft a will or trust that addresses your concerns and parallels your intentions.
contact us here.