Servicing clients throughout San Diego County and Southern California, Rodriguez Law Offices is available to explain the differences between a living trust and a will and to counsel you on which estate planning document would best suit your individual needs.
Most people know about wills and their basic purpose – to ensure that one’s hard earned assets go to the right beneficiaries when they pass away. Specifically, a will is a legal document that allows you to name an executor for your estate and to distribute your assets to your named beneficiaries. If you die without a will, then the state of California will decide for you who receives your assets through the laws of intestacy. However, wills can be used for a lot more than simply dictating who gets a person’s antique lamp collection. Here’s a list of some of the very valuable things a will can do:
- List who gets what. The most common purpose for a will is to name which individual, or group of individuals, will receive particular property belonging to a person when he or she passes away.
- Name guardians for children. Typically, a will is the document that states who should raise a person’s children if something happens to him or her. The will also usually contains at least one alternate in the event the first choice cannot serve. Naming a guardian for your minor child or children enables you to avoid any potential conflict that may arise between family members who are unable to agree amongst themselves who should be the guardian. As the parent, you and not the probate judge are in the best position to decide who you would like to name as the guardian of your minor children. This selection process may include evaluating which of your family members or friends share the same values as you or who has the closest ties to your child or children.
- Establish trusts. In many cases, a person may not want someone to receive all the property that they are inheriting at once. Or a person may want the beneficiary to be able to use the property for a while, and then for it to pass on to someone else. In that situation, an individual may choose to use a trust. A trust holds property on someone else’s behalf. In wills, trusts are commonly established for minor children, so that someone else can manage the children’s money until they reach a certain age when their parents believe they will be able to manage it. Trusts are also commonly used in second marriage situations – a person may want to allow a spouse to have access to certain property while the spouse is living, but for that property to ultimately pass to the decedent’s children. Trusts can help accomplish that goal.
- List funeral wishes. Although this is also done in other documents too, a will commonly states whether an individual wants to be buried or cremated, and where the body should be buried or the ashes should be spread. Sometimes, wills contain other information about funeral wishes too like where it should take place and even what readings might be recited.
- Tax planning. Wills can be great tools for tax planning in order to avoid federal or state estate or inheritance taxes. This can sometimes be accomplished through setting up various trusts.
- Naming executors and trustees. A will usually states who will be the executor of an estate, which is the person who will carry out a deceased individual’s wishes listed in the will. Wills can also name the trustees of any trusts established in a will, which is the person who will be in charge of carrying out the instructions of the trusts.
While wills can serve as a powerful estate planning tool, they are only effective if they are properly drafted to suit the needs of each individual. An estate planning attorney can review all your options with you and establish a will in a manner that ensures your wishes will be honored.
An important point to keep in mind, however, is that whether you die with or without a will, in either case your estate will have to go through the California probate process, which is expensive and time consuming. A common misconception is that having a will avoids the probate process, which is simply not true. An estate that goes through the probate process is subject to steep statutory probate fees for both attorneys and executors.
Unless your estate is under $150,000 or is being left in its entirety to your survivng spouse, the only way to avoid probate is with a well-drafted living trust. Rodriguez Law Offices can assist you in deciding whether a will or a living trust is best suited for your particular situation. Please call today for a consultation.
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