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Do I Need an Estate Plan?

Estate planning is simply just that-planning!  Estate planning can range from very simple planning to very complex planning, and even something in between.  Most people can describe a will.  However, beyond a will, most people do not know much about the other estate planning documents such as an advance health care directive, durable power of attorney or a revocable living trust.

A good estate planning attorney will plan for two major areas in life:  incapacity and death.  Whether you need an estate plan or not, please give some thought and answer the questions below.

Do You Own Real Estate?

Generally speaking, if you own a home in your name alone, then upon your death, your home has to be legally transferred to another person.  If you do not have a comprehensive estate plan in place, then upon your death, your estate will likely have to go through probate. If you have a valid will when you, i.e., you die “testate”, then the assets will be distributed to your beneficiary according to the terms of your will.  If you do not have a will when you die, i.e., you die “intestate” then the State of California will dictate who will receive your property, not you!   In other words, the State of California has a default estate plan for every adult who dies without an estate plan in place.  So do you want to create your own estate plan or do you want the State of California to create your “estate plan” for you? See “Do I Need Estate Planning” pamphlet by the California State Bar.

Do You Have a Family History of Disease or Dementia?

If you have a family history of Alzheimer’s, Parkinson’s, cancer or some form of dementia, then logic should tell you that you should have an estate plan in place in the event you are ever rendered incapacitated.  Furthermore, there are numerous other ways, both young and old alike, become incapacitated everyday in California.  For example, many Californians are rendered incapacitated by car accidents, slip and falls, heart attacks, and strokes.  Having an estate plan in place in case something happens will give you peace of mind knowing that your plan protects you, your family and your assets when you are no longer in a position to do it yourself.

Do You Have Minor Children?

If you have a child or children who are younger than 18 years old, then proper planning must be put in writing.  If you were rendered incapacitated or deceased and you child or children are minors, then a court must appoint a guardian for your minor children.  If you have a valid written minor guardian nomination, then the judge will view this legal document evidencing your intent to whom you designate to be the guardian of your minor children. This legal document will allow the judge to make the appropriate guardian nomination of your child or children if your were rendered incapacitated or deceased, or if there ever was a dispute between family and friends as to who should be the guardian of your children.

Do You Want to Keep Your Medical and Financial Information Private?

If you are rendered incapacitated without an estate plan in place, or died with or without a will, then your medical and family information will likely be disclosed to the public in probate court because probate court is open to the public.  On the other hand, if you were rendered incapacitated or deceased with a comprehensive estate plan in place such as a revocable living trust, advance health care directive and power of attorney, then these documents will likely circumvent probate and keep your personal and family information private.

Do You Want to Potentially Avoid Substantial Attorneys Fees?

Dying with or without a will can be costly.  Probate fees can be substantial given the size and complexity of the probate estate.   In probate, attorneys and executors are often paid substantial amounts.  See probate fees.   Also, the court will charge the estate for filing fees, probate referee fee, and court investigator fee, etc.   A comprehensive estate plan can avoid a costly probate proceeding and substantial probate fees.

Do You Need An Estate Plan Now?

Overall, most people should have an estate plan in place to address their potential incapacity and certain death.  For more information about estate planning or any other questions regarding estate planning, please contact the Law Office of Matthew W. Harris, a Marin County Estate Planning Attorney, today  at his San Rafael office for a free estate planning consultation at (415) 521-5610.

Note:  Attorney advertising.  Nothing posted on this blog by the Law Office of Matthew W. Harris, an estate planning attorney in Marin County, is intended, nor should be construed, as legal advice.  Blog postings and hosted comments are available for general educational purposes only and should not be used to assess a specific legal situation.  Nor does any comment on a blog post create an attorney-client relationship.  The presence of hyperlinks to other third-party websites does not imply that the Law Office of Matthew W. Harris endorses those websites, their contents, or the activities or views of their owners.

I Need A Will!

As a Marin County estate planning attorney, many prospective clients, like clockwork, tell me that they need a will.  I respond by asking them if they know the difference between a will and a revocable living trust.  Most of my prospective clients know what a will is and how it operates, and only some have a limited understanding of a revocable living trust.  However many do not know the major differences between the two estate planning documents (will and trust). To be blunt, if people understood the complex nature of estate planning and its documents, then they would not need to hire Marin County estate planning attorneys to create and draft their will or trust or other estate planning documents.

Will vs. Revocable Living Trust.

A will is a testamentary document, signed by an adult that, upon death, transfers assets to certain designated beneficiaries.  A will is valid upon a person’s death [not incapacity].   The person designated in the will to handle the deceased’s affairs is called the executor.  And all the assets that pass by the will are called probate assets and are part of the overall probate estate.  The larger the probate estate, the more in estate attorney fees and executors fees the probate estate will incur.  This is in turns, means less money to the deceased’s ultimate beneficiaries.  And the larger and more complex the probate estate, the longer the probate estate will be administered in a local probate court.  Lastly, all medical, personal, family and financial information of the deceased will be publicly disseminated in court for anyone in the world to view.

A revocable living trust, on the other hand, is a non-testamentary document that, upon incapacity and or death, will transfer assets to certain designated beneficiaries.  A revocable living trust is a probate avoidance vehicle.  In fact, it is a type of legal contract, used by numerous Marin County estate planning attorneys.  When the trust is created by a person, called the settlor, it must be properly funded.  This means, that the assets must be properly titled and held in trust, as opposed to outside of the trust.

If the settlor is rendered incapacitated during his or her lifetime, the successor trustee basically steps into the shoes of the settlor and assists him or her with their finances.  In addition to the trust, a competent Marin County estate planning attorney would also prepare other documents such as a durable power of attorney and advance health care directive, to address incapacity issues.  These documents will likely avoid a costly and lengthy conservatorship proceeding in probate court. As previously mentioned, a will does not have any affect when a person is rendered incapacitated.

If the settlor dies, then the assets are simply distributed to the designated beneficiaries, subject to any conditions or restrictions.  As a probate avoidance vehicle, a revocable living trust does not have to go through probate court.  This means that a trust estate will not incur probate fees such as estate attorney fees or executor fees.  Furthermore, assets in a trust can be distributed quickly, as opposed to the lengthy and cumbersome probate process.  Lastly, since a revocable living trust is a private document, generally speaking, it will not have to be filed with the court and open for the world to see.

After explaining the above concepts to my prospective clients, a majority of them come to the conclusion that they need much more than a will.  Perhaps a revocable living trust is the more appropriate estate planning vehicle.  Perhaps a simple will suffices.  It all depends.

Every adult should have an estate plan in place to address their potential incapacity and certain death. For more information about estate planning or any other questions regarding estate planning, please contact the Law Office of Matthew W. Harris, Marin County Estate Planning Attorneys, today for a free consultation at (415) 521-5610.  See

Note:  Attorney advertising.  Nothing posted on this blog by the Law Office of Matthew W. Harris, an estate planning attorney in Marin County, is intended, nor should be construed, as legal advice.  Blog postings and hosted comments are available for general educational purposes only and should not be used to assess a specific legal situation.  Nor does any comment on a blog post create an attorney-client relationship. The presence of hyperlinks to other third-party websites does not imply that the Law Office of Matthew W. Harris, Marin County estate planning attorneys, endorses those websites, their contents, or the activities or views of their owners.

THE IMPORTANCE OF ESTATE PLANNING

People often ask me what I do for a living.  I tell them that I am an estate planning attorney located in Marin County (San Rafael).  Many Marin residents tell me that they never created their estate plans because it is something they will do when they get older.  I am here to tell you that estate planning is not something that should be put on hold until you get older.  Moreover, estate planning is not just for “old people.”  In fact, everyone should create their own estate plan ASAP regardless of their age and economic status.

Estate planning is a vitally important process that protects you, your family and your assets from future events such as incapacity and death.  Due to advances in medical treatment, people are living much longer.  As a result, many more people suffer from some form of dementia and therefore rendered incompetent to handle their legal and personal affairs.  A comprehensive estate plan protects a person and their assets both during their potential incapacity and death.

I always cringe when I hear the morning news about a person dying in a car accident on their way to work.  I always wonder if that person somehow knew that it was going to be his or her last day here on earth.  This person who died on their normal daily routine can be you [or me] tomorrow, next week or next year, etc.  Simply put, all of us will die eventually but the date and location of our death remains uncertain.

Too many Californians do not have an estate plan in place to account for their incapacity or death.  Not having an estate plan defies logic and is not prudent because it puts you, your family, and your assets in peril.

So what is estate planning?  An estate plan created by an estate planning attorney in Marin involves both strategies and legal documents to protect you and your loved ones in the event you are no longer able to do so yourself.  Most people think of a last will and testament as an estate plan.  However, a comprehensive estate plan usually involves a revocable living trust, pour-over will, durable power of attorney and advance health care directive.  See estate planning documents explained.

I hope by now that you can see the importance of estate planning to protect you and your family from your potential incapacity and eventual death.

Matthew W. Harris is a Marin County estate planning attorney located in San Rafael.  For more information about estate planning or any other questions regarding estate planning, please contact The Law Office of Matthew W. Harris today for a free consultation at (415) 521-5610.

Note:  Attorney advertising.  Nothing posted on this blog by the Law Office of Matthew W. Harris, a Marin County estate planning attorney, is intended, nor should be construed, as legal advice.   Blog postings and hosted comments are available for general educational purposes only and should not be used to assess a specific legal situation.  Nor does any comment on a blog post create an attorney-client relationship. The presence of hyperlinks to other third-party websites does not imply that the Law Office of Matthew W. Harris, endorses those websites, their contents, or the activities or views of their owners.