FAQ estate planning

FAQs IN ESTATE PLANNING

What is a Trust?

In legal terms, a trust is a fiduciary relationship in which a trustee holds legal title to specific trust property under a fiduciary duty to manage, safeguard, invest and administer the trust assets for the benefit of designated beneficiaries, who hold equitable title.

In plain English, your assets (your money, house, etc) are held in trust, administered for your benefit during your lifetime and during your potential incapacity, and then distributed at death to your designated beneficiaries.  Most of my clients name themselves as trustees of their trust, thus they are in charge of managing their trust’s assets during their lifetime.   Furthermore,  a successor trustee (a person or an entity) can step into your shoes and manage  your trust’s assets if you ever become unable or unwilling to do so yourself. Trust.

What is a Will?

A will or last will and testament is a document that distributes property to designated beneficiaries on the creator’s death.   A will also allows for the appointment of guardians for your children in the event of your death. Will

Trust vs. Will-What Should I Choose?

It depends.  The estate planning process is based on an individual’s facts and circumstances as they are presented.   Different individuals have different facts and circumstances.  With this is mind, there are many advantages and some disadvantages with respect to a trust or a will.  A trust is a great way to avoid probate, an expensive and lengthy court process that is open for public viewing.  A trust is also a private document that protects the family privacy.  Many estate planning attorneys prefer trusts over wills.  This is not to say that wills have become obsolete.  In fact, a comprehensive estate plan by the Law Offices of Matthew W. Harris creates what is called a “pour-over” will; i.e., any assets that were not properly titled in the name of the trust (see trust funding), will “pour-over” into the trust and thus avoid probate so long as these titled assets do not exceed in the aggregate $150,000.

I Already Have a Will, Isn’t That Enough?

No.  There are generally two broad areas of estate planning: (1) planning for incapacity; and (2) planning for death.  A will is a document that can be amended or revoked anytime prior to the will creator’s death so long as he or she has testamentary capacity.  Legally speaking, a will is only effective upon a person’s death. What if the person becomes incapacitated in a slip in fall or car accident or disease?  This person may be incapacitated for days, weeks, month, years or even decades.  A will does not address incapacity, but an advance health care directive does.  As a result, a will is not enough to address all of your needs and concerns.

Can an Estate Plan Provide For My Children?

Yes.  In fact, many parents create estate plans for this very reason.

I Am Not Married, Do I Still Need An Estate Plan?

Yes.  Considering the State of California has already created an estate plan for everyone who fails to create their own estate plan, you should avoid the government’s estate plan version at all costs.  See.

Can a Trust Provide For the Care of Animals?

  • Yes, California law allows a trust for the care, maintenance and support of the trust creator’s animal.

 

 

What is a Power of Attorney?

A power of attorney is a legal document by which the creator of the document (called the principal) chooses a third-person (called an attorney-in-fact) to perform certain acts on behalf of the principal. See

 

When is a Power of Attorney Effective?

A power of attorney can be effective immediately upon proper execution.  A power of attorney can also be “springing” meaning that it will take effect at a future date and event (e.g., when the principal is rendered incapacitated).

If There Is A Conservatorship Established Can An Estate Plan Be Created on Behalf of the Conservatee to Avoid Probate?

 

Yes.  If a conservatorship proceeding has been established, the conservator or other interested person can petition the court under substituted judgment and create an estate plan for the conservatee, and thus avoid a potentially lengthy and costly probate.

What Are Some of the Common Duties of a Trustee?

A trustee has many duties.  In administering a trust, the trustee must exercise that degree of care, skill and caution that would be exercised by a “reasonably prudent person” in managing his or her own property.  A trustee is subject to fiduciary duties and  the following are the most common:

Administer the trust according to its terms and law. (Cal. Prob. Code §§16000, 16001).

Make trust property productive. (Cal. Prob. Code §16007)

Enforce Claims that are part of the trust property. (Cal. Prob. Code §16010).

Defend actions that might result in loss to the trust. (Cal. Prob. Code §16011).

Diversify investments of the trust, unless it is prudent not to do so.  (Cal. Prob. Code §16048

Take control of and preserve trust property. (Cal. Prob. Code§16006).

Review assets after acceptance or receipt of trust property. (Cal. Prob. Code §16049).

Identify and Segregate Trust Property.  (Cal. Prob. Code§16009).

Keep beneficiaries informed & render accountings to them. (Cal. Prob. Code §16060-16064)

Undivided loyalty in the administration of the trust. See.

Do it right the first time!  Call  Marin estate planning attorney, Matthew W. Harris, Esq., LL.M  today at his San Rafael office (415) 521-5610 to schedule your free estate planning consultation.

LEGAL DISCLAIMER

The information on this website is for general information purposes only.  Nothing on this site should be taken as legal advice for any individual case or situation.  This information is not intended to create, and receipt or viewing does not constitute, in any way an attorney-client relationship. Matthew W. Harris, Esq., LL.M is a member in good standing with the State Bar of California