Estate planning involves making crucial decisions about what happens to your properties and assets once you pass away. You can employ several tools, like a will and a trust, to accomplish your goals for how these properties and assets will be distributed. An attorney experienced in estate planning can help you determine if it is better for you to have a will or a trust in California.
To suit your needs, it is vital to understand the elements of a trust and a will and how they might apply to you. Both of these documents can help you plan for the future and the protection of your assets for yourself and your loved ones.
An Irvine wills and trusts attorney can help you determine which is the right choice for you, your estate, and your loved ones. Preparing for the inevitable isn’t always an easy task, but it can be made easier with the help of a knowledgeable attorney.
Defining a Will in California
In the state of California, a last will and testament explains and designates how your assets will be distributed between your heirs upon your death. It also identifies all your personal possessions and will include the names of all your beneficiaries and heirs.
A will should also include instructions regarding the appointment of someone you trust to act as your will’s executor: the person who will fulfill your wishes as they are laid out in the will.
In the state of California, a will typically undergoes a legal court process called probate. This process establishes your will as a public record. The instructions provided by a will go into effect upon your death, but you do have the ability to edit it while you are still alive.
Establishing a will gives you total control over the distribution of your assets. It also lets you outline your wishes for burial arrangements. Creating a will can appoint guardians for any minor children or other dependents and can offer peace of mind to both yourself and your loved ones, knowing that things will be taken care of once you are gone.
Defining a Trust in California
A trust is a legal establishment that gives you the ability to name a trustee or someone in charge of managing your trust to handle the operations of the assets included in said trust. They can do this on your behalf or on the behalf of your beneficiaries. Trusts can sometimes be quite flexible and can allow the trustee to manage the operations of your trust for years to come.
In California, there are two types of trusts.
- Living Trusts: During the creation of a living trust, the person creating it, or the trustor, must put the desired properties and assets into the trust, establish someone as the trustee to oversee and handle all operations, and name at least one heir or beneficiary. In most cases, a trust is revocable, meaning you can go back and modify it throughout the duration of your lifetime as you see fit.An irrevocable living trust cannot be changed or modified in any way.
- Testamentary Trusts: Generally, a last will and testament can include a testamentary trust. These trusts are not created until the trustor passes away. The main advantage of these kinds of trusts is their flexible nature.
With wills that must go through probate, the assets are to be distributed to the beneficiaries by the time the court process has ended. However, with a testamentary trust, these assets can be distributed to the heirs for an indefinite period of time, like a living trust.
Should I Create a Will or a Trust?
Whether you should create a will or a trust depends on your circumstances and preferences. If you’d like to bypass probate, you should create a trust. However, you should still create a will in this instance. A will can ensure that any assets you didn’t put in the trust can be distributed properly. It also has other benefits, like the ability to name a guardian for your minor children.
The Main Differences Between a Will and a Trust
There are many differences between a will and a trust. These differences don’t necessarily mean that one is better than the other, but they include the following:
- A living trust can keep your assets from going through the lengthy probate process.
- Trusts typically are more expensive to establish and maintain.
- Information stays private in a trust but becomes public record in a will.
- A trust is operated by a trustee, whereas a will names an executor to manage assets until the probate process is complete.
This list is not exhaustive, and both wills and trusts have their own set of nuances. An attorney experienced in wills and trusts can review your case and help determine which is a better choice for you and your family.
FAQs
Q: Who Needs a Trust Instead of a Will in California?
A: Many people might need a trust instead of a will in California. Creating a trust can help safeguard your properties, assets, and interests in the event you become incapacitated and unable to manage your affairs. This situation can arise if you develop Alzheimer’s or dementia, suffer from a stroke, or have other mind-altering conditions. A trust can also protect your heirs from dealing with creditors and preserve any tax exemptions.
Q: Why Use a Trust Instead of a Will?
A: There are many reasons why you might choose a trust instead of a will. In the state of California, trusts are exempt from the lengthy court process of probate, unlike wills. They also have to be set up with the assistance of an attorney, who can safeguard their legality should any disputes arise between the trustee, trustor, or the beneficiaries of the trust. They can also be effective as soon as they are funded and established.
Q: What Are the Negatives of a Trust vs a Will?
A: The main negatives of establishing a trust over a will are the costs involved in creating a trust. You will also have to provide more information upfront when creating a trust, which will involve more complicated documents than a will. Additionally, any assets put into the trust are no longer yours by ownership.
Q: Does a Will Override a Trust in California?
A: In the state of California, a trust can override the authority of a will if someone has created both. A trust goes into effect as soon as it is funded and established by the trustor. Only once the trustor has passed does the will have authority over the assets that were left out of the trust.
Contact a Trusted Wills and Trusts Attorney Today
At The Flanigan Law Group, we have the necessary experience and knowledge to help you determine which course of action is the right choice for your estate planning needs. It all depends on your wishes for what happens to your property and assets once you have passed. Our firm knows how to draft and prepare a solid estate plan to protect your legacy for generations to come. Contact us today.