Living Trust & Wills
What is a Living Trust v. Will?
A Living Trust is a vital component of an estate plan, and part of estate planning documents prepared for you while you are alive. In order for a Trust to work properly, you must transfer most of your assets to your living trust. Title to some assets cannot be transferred to the trust, such as IRA accounts. While you are alive and well, you are the Trustee of the Trust. Since you are the trustee, you manage the day-to-day operations of the Trust while you are alive and well. Normally, while you are alive and have capacity, the Trust is revocable. This means that you have full control over the assets and that can spend all the money in the Trust, revoke or cancel the Trust, amend or change the terms of the Trust, and change any of the beneficiaries of the Trust. You select one or more successor trustees in your Trust document. The successor trustee is the person or persons who will manage the Trust after you are no longer able to do so.
Why Prepare a Trust v. Will?
In the event of your incapacity or death, the successor Trustee steps in and manages the Trust for you. If properly funded, the selection of the successor trustee is a very helpful estate planning tool in avoiding a conservatorship proceeding. The successor Trustee can give you income and principal for your benefit while you are alive. Normally, the primary successor trustee is your spouse, if you are married. For most unmarried persons, the Successor Trustee can be one of a child, another person, or a bank.
Avoid Probate to Eliminate Estate Expenses
Assets which are properly transferred to the Trust normally escape Probate. Estate Planning can result in a significant savings to your heirs. Probate Fees in California are Statutory and can range depending the value of your estate.
Does a revocable living trust or a will take precedence?
When considering the subject of revocable living trusts, it is important to understand which will take precedence in the event that property is left both in a Last Will and Testament and a revocable living trust. The revocable living trust will take precedence, as we will explain further. A living trust is established while a person is still alive and is a viable means of transferring property to a beneficiary while avoiding the probate process. A will is another way that a person may leave property to another person, but a will requires probate.
What happens if property was left to one person in a Last Will and Testament and the same property was left to another person through a revocable living trust? The living trust will take precedence, meaning the person left the property through the trust will receive the property, not the person named in the will. This applies regardless of which document was executed first. The trust takes precedence because the property was already transferred when the trust agreement was executed. The will does not allow for the transfer of property until the death of the owner. When a revocable living trust is established, property ownership is actually transferred to the trustee.
Living Trusts v. Wills in California
If you are considering setting up a living trust or are dealing with a trust, will or any probate or estate planning matter in the Los Angeles area, an experienced trust litigation attorney at our firm can help. We offer personalized legal representation in these matters, providing our clients with the guidance they need in these often complex issues.
Health Care Directives
When it comes to planning ahead, a health care directive can be a beneficial tool. At ABA LAW GROUP, we help our clients take into consideration every aspect of the estate planning process. If you interested in setting up a comprehensive plan that addresses your financial, familial, and health care concerns, be sure to contact one of our attorneys here at ABA LAW GROUP to sit and discuss the details of your case.
What is an advance health care directive?
California allows individuals to set up legal documents that give direction on the type of health care they would like to receive if they are no longer able to make those decisions for themselves. For example, if an individual was involved in a severe accident and fell into a coma, their advance health care directive would be used to provide doctors and loved ones direction on the type of care they would like to receive or avoid.
Many people choose not to prolong the dying process, setting up a health care directive to allow family members peace of mind when forgoing certain treatment options. You can also choose to set up an individual, or agent, to enact the health care directive for you through a document called a durable power of attorney. When you combine the two documents, it is called an advance health care directive. Your agent and doctors are legally obligated to follow your last wishes.
Let Us Help With Your Estate Plan — Call Today
If you would like to set up an advanced health care directive and include additional or more detailed instructions regarding your health care, be sure to call one of our attorneys here at ABA LAW GROUP to discuss you estate planning situation. We can walk you through the legal process and ensure that your final wishes and instructions are clearly documented.
Powers of Attorney
One of the documents that must be in place in a comprehensive estate planning a durable power of attorney. This is a legal document in which you appoint another person, whether a family member or another person you trust, to make decisions about your finances, care and health decisions, such as types of treatments you choose for yourself should you become incapacitated and unable to communicate. There are two types of powers of attorney that must be in place in an estate plan. The first is to appoint a person to manage your financial affairs if you become unable to do so, and the second is for healthcare decisions.
Powers of Attorney for Finances and Healthcare
Here at ABA LAW GROUP we will work with you to put a full estate plan in place, including these critical documents. As decisions will be made by the person you choose, this is an extremely important decision to make. These are discussions we can have with you. Our goal is to protect you and to ensure you are making fully informed decisions for your interests and your heirs. Our attorneys have extensive professional experience in both simple and advanced estate planning, and our attention to detail to craft an estate plan that reflects the personal wishes of our clients.
We can assist you with all aspects of estate planning, including the most advanced strategies and processes. You may require not only powers of attorney so that a trusted individual can make the crucial decisions for you, but you may also need an entire estate plan to be put in place, or your existing plan can be reviewed and updated. As a business owner, you may need help with business succession planning or the creation of more advanced trusts to protect your assets upon your death. Failing to have all the documents in place and properly filed can leave your family confused about what should be done financially, or regarding your health care. Avoid these potential problems by meeting with one of our attorneys here at ABA LAW GROUP to resolve any questions or concerns.
Durable Power of Attorney
A power of attorney is an estate planning tool that gives authority to an individual known as an attorney-in-fact. This authority allows this person to act on behalf of the principal. This attorney-in-fact does not have to be an actual lawyer but anyone who the principal trusts to act on their behalf. The principal has the ability to make many decisions, including the details of the power of attorney and the scope of power that the attorney-in-fact possesses. One of our attorneys here at ABA LAW GROUP can help you understand what details should be included with your document, depending on your circumstances. The power of attorney can be used for a variety of actions, such as to pay bills, transfer funds, or fulfill business transactions. It can be used for almost any decision and there are a variety of types of powers of attorney. A durable power of attorney document is usually related to financial or business transactions.
Power of Attorney for Healthcare
There can be confusion with your family if you become incapacitated and are unable to make your own decisions. Family members may not agree on treatment you may have wanted for yourself. If you do not appoint a trusted person to make these decisions, there can be conflict of decisions over your health care decisions. A power of attorney for healthcare is an important document that you should have in place to complete your estate plan.
Your Health Care Decisions
Our attorneys here at ABA LAW GROUP can assist you in all estate planning matters, including wills, the establishment of trusts, and other critical documents, such as a power of attorney for health care or advance health care directives. If you become seriously ill and unable to make decisions for yourself, the person you select will have the responsibility to make these decisions for you.
A health care directive essentially outlines the types of care you want. This can include refusing treatment or choosing a medical facility or doctor that can treat you. All of these issues are important and should be considered with help from one of our attorneys at ABA LAW GROUP who can meet with you to discuss these details. We can assist you with all estate planning matters, including the drafting of this document.
The Probate process can be challenging if a person is not familiar with the procedural requirements. Probate is the legal process that is followed to prove the validity of a Will, in essence to ensure no fraud in the construction of the document. Once the document is determined to be valid, the probate process then regulates the transfer of assets contained in the Will to the proper heirs & beneficiaries after a person passes away. Probate can occur if a person does not have a Will, also known as (Intestate). However, there is a different process involved in the distribution of assets if a person passes away without a will. During this process, the assets would need to be identified and appraised before any distribution can take place.
Although this process can be confusing, there is no need to navigate through this this process alone. Contact one of our attorneys here at ABA FAMILY LAW GROUP to schedule a free consultation to review any documents you may have so we can discuss your case and to have any documents explained to you. Your understanding of your case will provide you with the needed relief so you can discuss a well thought out strategy on the best way to proceed with your case.
Living Trust v. Will
Generally, having a Living Trust as opposed to a Will can avoid probate since in a Living Trust, a Successive Trustee is selected prior to the Trustee passing away. At that point, once the Trustee passes away, the Successive Trustee will step in as the Trustee to follow the instruction of distribution left by the original Trustee.
However, there are circumstances where Probate would be necessary concerning the Trust. If there are issues of fraud during the creation of the trust or if the Trust was created under threat or duress. Probate would also be necessary if there are issues with the Successive Trustee not following their duty owed under the trust. If you have questions or concerns with a Living Trust, one our attorneys here at ABA LAW GROUP would be happy to meet with you for a free consultation to discuss any issues of concern you may have regarding a Living Trust if you intent to file a Trust Contest. If this may be your intention, it’s imperative to remember that in the State of California a person has a limited amount of time to file a proceeding with the probate court. So it would be important to contact one our attorneys here at ABA LAW GROUP with close to 38 years of combined legal experience so any necessary case filings can be done timely.
Legal issues can create anxiety and difficulty, let the attorneys at ABA LAW GROUP work with you to ensure your rights are protected and to keep you informed throughout the process.