Many have experienced anxiety by reminding themselves of their own mortality with the COVID-19 pandemic. As a result of this, people are reaching out to me for estate planning. They ask if they need a Will or a Trust? Would they be able to get by with just a Will? As an attorney, I will advise if one needs either a Will, a Trust, or both.
What is a Will?
A Will is a document that states the wishes of a person after his/her death. It is a document that can contain provisions for guardianship over minor children as well as distribution of one’s estate after their death. However, a Will on its own has very little power or authority; a person who is responsible for handling another person’s estate, the “Executor”, cannot just take a copy
of a Will to a financial institution, hand it over to the bank representative and obtain the funds of the deceased. The Executor can only act out the terms of the Will after the Will is submitted to the Court (a.k.a. Probate). The Court will then consider the terms set out in the Will to create Orders authorizing the Executor to act. (A Will is generally only words on a paper until it’s
submitted to Probate and the Court takes action on it.) A Will sets up an estate for Probate… so, is a Trust the only means to avoid the expenses and consumption of time (Probate)? Not necessarily…
Do I need a Trust?
A living revocable trust is a legal instrument that sets out ownership of assets, guidelines for the management of those assets while you are still alive, and distribution of assets after you pass away. Generally when you have a living trust created, you still maintain full control over the assets. In California, the extent and value of your assets determine whether a trust is needed or not.
If the value of your estate is $166,250 or more, or if you own real estate, it is strongly recommended to have a living trust to avoid possible probate when you pass away. It allows the designated agent (Successor Trustee) to act/corral assets and distribute them without court intervention.
When is a Trust not needed? Small Estate Petition/Probate Code 13100
In California, if a person’s estate is under $166,250 and does NOT have an ownership interest in real estate, there is an administrative action that can be taken without going to court to corral and distribute one’s assets. One can obtain a Small Estate Petition (Probate Code 13100). This declaration will be presented to the entity (i.e. financial institution, plan administrator, agency)
who currently has control of the assets being sought, under California law, the declaration will give the entity the authority to release the assets to the deceased’s next of kin/legal heir(s).
Example:
A person has three bank accounts and a car in their name. The total assets are $100,000. The personal representative of the estate may be set out in the person’s Will, or, if there is not a Will, the next of kin/legal heir(s) can sign a Small Estate Petition under Probate Code 13100 to collect personal property of a small estate.
Another consideration when making a decision on whether you need a Will or a Trust or both is that a person cannot just focus on the here and now – a Trust will serve as the depository for current and future assets. Anticipate how your estate will look in the foreseeable future before making the decision.
Unsure if you have sufficient estate planning? Check with a lawyer to verify that your estate is in order. Take control of your estate rather than having your state control your assets when you pass.
If you have any questions about a new estate plan or in need of updating your existing estate plan, contact the Law Offices of Ian S. Topf, APC by calling (619) 546-9777 or by email: ian@topf-law.com.
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