Estate planning is a process that involves your family, your property (both real estate and personal property), and the various forms of ownership and title of that property. Estate planning also addresses your future needs in case you ever become unable to care for yourself.
Through estate planning, you can determine:
* How your assets will be managed for your benefit during your lifetime.
* Whether it is appropriate to distribute any of your assets during your lifetime.
* Those persons who will receive your assets after your death.
* Who will manage your personal care and how health care decisions will be made.
Estate planning involves financial, tax, medical and business planning. A Will is part of the planning process, but you will need other documents as well to fully address your estate planning needs.
Everyone needs estate planning, whether your estate is large or small. Everyone should designate someone to manage assets and make health care decisions.
For a small estate, the primary focus is who will receive your assets after your death, however, you also need to name those persons you will put in charge of managing your property, both before and after death, and who will make your health care decisions, in the event you lack capacity or are unable to communicate with medical professionals.
For those who fail to plan ahead, the Court will appoint someone to handle your estate and personal care decisions. After death, your assets will be distributed to your heirs according to a set of rules known as “intestate succession.” Contrary to popular myth, everything does not automatically go to the State of California if you die without a Will.
Most assets in your name alone at your death will be subject to your Will. Some exceptions include accounts that have designated beneficiaries, such as life insurance policies, IRAs and other qualified retirement accounts. These types of assets pass directly to the beneficiaries and would not be included in your Will.
In addition, accounts in joint tenancy pass directly to the surviving co-owner regardless of any instructions in your Will.
Finally, assets that have been transferred to a revocable living trust will be distributed to your beneficiaries by the trustee of your trust, not through your Will.
It is important to note that if you own real estate, the property will not pass to your heirs without court involvement, know as “probate.” In order to avoid probate, the property needs to placed in a revocable living trust (also known as a revocable inter vivos trust or grantor trust). Assets are put into the trust, administered for your benefit during your lifetime and transferred to your beneficiaries when you die, all without the need for court involvement.
Most people name themselves as the trustee in charge of managing their living trust’s assets. By naming yourself as trustee, you can remain in control of the assets during your lifetime. In addition, you can revoke or change any terms of the trust at any time as long as you are still competent. (The terms of the trust become irrevocable when you die.)
In your trust agreement, you will also name one or more successor trustees who will manage the trust’s assets if you should ever become unable to do so. Your successor trustee would also take over the management and distribution of your assets when you die.
You should consult with a qualified estate planning lawyer to assist you in the preparation of a living trust, your Will and other estate planning documents. Also, keep in mind that your choice of trustees is extremely important. That trustee’s management of your living trust assets will not be automatically subject to direct court supervision.