Confusion Abounds Over Living Trusts

Confused about living trusts? If so, you are not alone.

A living trust is a legal entity normally created to hold assets in your lifetime and distribute them after your death. [A living trust has nothing to do with a living will. A living will is a document that states your desires regarding use of artificial means or heroic measures if you become disabled.]

The internet is littered with so-called “experts” loudly proclaiming their opinions about living trusts.

Some “experts” say living trusts are the best thing since sliced bread. Others, say living trusts are worthless and their benefits a hoax.

The truth is much more complicated.

Living trusts can do great things for some people and nothing for others. It just depends on your situation.

It is true that a living trust can, among other things, be used to avoid probate and save estate taxes. It also can help provide privacy, flexibility and even avoid a guardianship proceeding if you become incapacitated.

One of the biggest benefits of a living trust is that it allows you to begin to put your estate plan into action while still alive. You can then get some insight into how your estate plan will work and make adjustments if necessary.

However, there are other ways to achieve these objectives that might be easier and cheaper for you. Also, it can be difficult and sometimes costly to properly prepare and fund a living trust.

So, the truth is that a living trust offers advantages and disadvantages.

Generally speaking, the larger and more complex your estate, the more a living trust will likely benefit you. Certainly if you have assets over $1,000,000 you should seriously consider having a living trust drafted as part of your estate plan.
The bottom line is to figure out if you should get a living trust you need to either talk to an experienced estate planning attorney about your particular situation or you need to invest some time learning about the advantages and disadvantages of living trusts.

Maurice Johnson is an attorney and has practiced estate planning law throughout his professional career. He is publisher of Free Living Trust Information. To find out more about the advantages and disadvantages of living trusts, visit Advantages of a Living Trust and Disadvantages of a Living Trust.

Greenville Attorney Warns Of Estate Planning Complications

Greenville Lawyer Wants Senior Citizens and Their Loved Ones To Get Their Estate Affairs In Order Elder Law is a fairly new specialized area of law dealing with the problems and issues faced by the most quickly growing portion of the country’s population, seniors. Elder law incorporates the elements of Estate Planning, Medicare/Medicaid Planning, Conservatorship, Wills and Trusts and Health Care Planning.

Mr.Pete Fields, a Greenville Attorney, from Greenville, SC, works to caution seniors and their children of problems that will come up if estate planning issues do not get settled fast, If you wait too long, it could be too late to get your affairs handled the way you want them taken care of!

Here’s just a short listing of the things thisGreenville Estate Planning Attorney can help you in accomplishing:

Make Plans for The Care You Will Require Prior to that Time Occurring

Cut down and Even Eliminate Assisted Living Facility Bills

Increase The Amount of Income You Keep, Safeguard Your Life Savings

Make Proper Investments

Save on Estate Taxes, Income Taxes and Death Taxes

Pass on An Inheritance To Your Children and Grandchildren

Reasons You Need To Deal With Estate Planning As Quickly As Possible!

No one wants to dwell on the thought of their death. However, if you ignore planning for your passing until it is too late, you’ll run the risk that intended inheritors — people that you adore and love — might not inherit the things you’d want them to receive whether due to taxes or quarreling among your heirs. These are reasons why estate planning is so significant, regardless of how small or large your estate may be! It allows you, while you’re still living, to ensure that your property and assets will go to those that you want, the way you want, and in the time you desire. It provides a way for you to save as much on taxes as possible, attorneys’ fees and court costs; and it provides the comfort that your children and family can mourn over your loss and not be burdened simultaneously with needless financial confusion and red tape. Each estate plan should have, at least, two necessary estate planning instruments: a power of attorney and a will. The first is for managing and controlling your assets and property while you are alive, in case you aren’t able to do so alone. The second is for the apportionment and management of your property and assets after death. In addition, more and more often, Americans are using revocable trusts in order to escape probate and to manage their estates both once they’ve died and while they are living. How will you know if you require estate planning help?

-Have no legal documents

-Have documents which are old and your children are grown up

-Your documents no longer show your wishes

About the author:

Pete Fields is a Greenville estate planning attorney in Greenville, South Carolina. He also has an office in Clemson,SC that includes a Clemson estate planning lawyer. This information is for general informational purposes only and does not constitute legal advice. For specific questions or concerns, you should speak to an experienced elder law attorney. 2007 The Fields Law Firm

Pete Fields is a Greenville estate planning lawyer in Greenville, South Carolina. Find more information on Clemson attorneys and estate planning.

Making A Claim Against An Estate

Family Provision Act Claims Sometimes when a family member passes away some of the deceased’s relatives believe that they have not been adequately provided for in the deceased’s will.

These persons are often current or former spouses, de facto spouses, children or step children. Sometimes grandchildren also may make a claim as well as other persons who have, at some time, been at least partially financially dependant on the deceased and a member of the deceased’s household. Frequently the deceased is viewed as having had a moral obligation to make some provision for that person on their death.

In these circumstances it may be possible to make a claim under the Family Provision Act 1982 (NSW). Proceedings for an order under the Family Provision Act must be commenced within 18 months after the death of the deceased person. The court has the power to extend the time for commencement of proceedings where sufficient cause is shown for the application not having been made within the 18 month period.

In order for a court to alter the deceased’s will the court must be satisfied that the deceased failed to make adequate provision for the “proper maintenance, education and advancement in life” of the person making the application. Whether the deceased made “adequate” or “proper” provision depends on all the circumstances of the case.

For this reason courts consider a wide range of factors such as: the wealth of the deceased, the number and needs of other dependents and beneficiaries, the age and capacity of the applicant and the relationship between the applicant and the deceased.

Where a court is satisfied that the deceased failed to make adequate and proper provision for someone, the court then decides what, if any, provision should be made for the applicant. In making this second determination, courts again consider a wide range of factors. For instance, if the applicant is a person with an intellectual disability the court may consider issues such as the availability of social security benefits and the extent to which the person’s disability inhibits his or her ability to gain employment.

Undue Influence & Duress

Courts can declare a will to be invalid in situations where it was made under duress or undue influence. In either situation, someone attempted to influence the terms of the will. Duress can be physical, psychological or in the form of a threat. Actual evidence of duress is required.

Undue influence can arise in circumstances where a relationship exists between a person making the will and another person such that the other person was in the position to exert some power over the person making the will to make the will in a certain way. Most often the person exerting the undue influence is likely to be a family member.


A will can also be challenged in the event that, at the time it was made, the person making the will lacked the necessary legal capacity to make the will. In effect, this means that the person making the will, at the time, did not understand the nature and effect of a will they were making, or were unable to make rational decisions regarding the distribution of their property.

This situation most frequently occurs in relation to the elderly, people in frail health, or those suffering from an illness which affects their mind.

In almost all cases, medical evidence as to the person’s lack of capacity will be required to establish the incapacity at the time the Will was made.

Contract to Make a Will

In some situations, people (usually married or de facto couples) may choose to enter into a binding contract to make their wills in a certain way. Usually both people make a will in accordance with the contract at or about the time the contract is entered into.

It sometimes happens that one of those persons may make a later will which is inconsistent with the contract, often without telling the other contracting party about their new will, or perhaps after the death of that person.

Where the contract regarding the making of the wills has been properly drafted and is legally enforceable, persons affected by a breach of the contract may be entitled to make a claim for damages or other relief from the court.

Frank Egan is the Chief Executive Officer of LAC Estate Lawyers Sydney and has over 27 years of experience as a lawyer.


NEED A Lawyer? Check out our Lawyer Directory!

Probate Auctions on E-bay

Whenever a person dies and leaves behind debt creditors, the administrator or executor of that person’s estate faces certain challenges in quickly selling real and personal property in order to satisfy creditors. The probate process is long and drawn out, and every shortcut available should be sought in order to shorten the amount of time that property is tied up in the process. Recently, with the great success of E-bay, people have discovered a quick and efficient way to unload property in order to satisfy debts. Not only has E-bay made the general premise of auctioning easier, it has also made it more understandable and desirable to the masses. It is the jurisdiction’s Probate Court’s responsibility to ensure all probate assets are collected, maintained, and distributed among the decedent’s heirs, beneficiaries, and/or creditors in accordance with the will of the decedent as expressed through that person’s testamentary will and the laws of that jurisdiction. This process is known as the administration of a decedent’s estate, and it can cause great difficulties to even the most experienced executor. Once the person dies, the executor or administrator must first make an accounting to the Probate Court to determine the value of decedent’s estate. Second, they must seek to pay any taxes or debts owed. Only after the debts and taxes are paid, do the decedent’s heirs or beneficiaries get any of the probate property. As the probate process can often take more than a year, using E-bay, or other comparable online services can assist in satisfying the creditors and debts owed by the estate. However, it should be pointed out that under Massachusetts law, creditors do have one-year to make any claims against the estate.

Even a quick browse through E-bay listed properties presents many real properties for sale which are currently in probate. Utilizing E-bay and other online auction tools can allow a person to achieve the greatest value for the estate, since auctions can be held across the country, creating a true marketplace for the decedent’s property. Online auction sites allow for the administrator or executor to realize a more accurate value for what is being sold. This tool can actually demonstrate that the executor has fulfilled his or her fiduciary duties. However, when selling real probate property over an online auction site, the administrator of the estate should first seek court approval. While auctioning off real property from a probate estate will help move the process along, it might not have a substantial effect on the overall speed of the probate process itself, though it can be of assistance in clearing up creditors and determining priority of payment. The true value of sites such as E-bay lies in their ability to allow the seller to achieve the greatest amount for the property as possible. While only hundreds might attend an auction in person, E-bay allows thousands of people to participate in the auction, all the while driving the price up and leaving more money to the estate.

The valuable advocate must have a clear understanding of the best ways in which to assist their clients or their client’s estate in obtaining the best value for any property in probate. Utilizing newer technologies in order to gain value or speed the hassles of probate can create substantial good will in the eyes of the client or their estate. The role of the effective attorney is to reduce problems and headaches and to make life easier for clients. If an attorney can also reduce costs, increase value and speed along the probate process, he or she just might have found lifelong clients. Additionally, having a clear understanding of available technologies can help to assist executors of estates in fulfilling their fiduciary duties of successfully executing the intent of the decedent.

This article was drafted by Nicholas Delaunt for the Law Firm of Goldstein and Clegg, LLC. This article is not intended as legal advice in any way, and if you wish to liquidate an estate through eBay, you should contact an Estate Planning or Probate lawyer.

Back to homepage for Law Information

What to Look for in a Special Needs Trust

Parents of children with special needs face unique and often troubling obstacles when attempting to financially plan for the future. Most often, these parents substantially rely on supplemental security income (SSI) benefits through the Social Security Administration, which helps to pay for treatments and necessary special needs programs. The dilemma faced when planning for the child’s financial future is that an outright bequeath to a child will most likely disqualify them for public assistance, and the child is also most likely unable to care for themselves. Parents are often faced with the very real possibility of having to disinherit a child in order to preserve the child’s right to receive SSI benefits and other public assistance. The main goal of an effective financial plan for a special needs child is to provide funds for living without limiting the child’s access to available benefits. A Special Needs Trust helps parents accomplish this goal. The development of the Special Needs Trust arose because of the need for a vehicle that would enable parents to deal with various governmental restrictions on how it disburses benefits. This planning device is generally based largely on Social Security Administration guidelines which permit payment for certain services without negatively affecting SSI benefits or eligibility status. To achieve its goal in preserving public assistance eligibility, the Special Needs Trust must be carefully structured as a fund which supplements, without supplanting, SSI provisions for the child’s needs in areas such as housing, food and clothing.

As with most trusts, a Special Needs Trust requires four essential elements: (1) a corpus (the money or assets placed in the trust); (2) a beneficiary (the special needs child); (3) a trustee who distributes the funds and has discretion over such disbursements; (4) a purpose, often set out in the trust document, which guides how the funds will be distributed. An attorney experienced in trust creation and maintenance should be used in order to ensure that the trust document accurately and effectively accomplishes its goal.

The trust document must accurately describe the relationship between the corpus, the trustee and the beneficiary. In order to maintain its discretionary nature, the beneficiary must be kept from personally receiving the body of the trust for any purpose other that set out in the document itself. The trustee’s role is the most important aspect of the Special Needs Trust. When choosing a trustee, the settlors (parents) of the trust must elect a person of trustworthy character who will fulfill his or her fiduciary duties to the beneficiary. The trustee should generally be prohibited from giving cash to the beneficiary, as doing so could cause the cash to be considered income, affecting the beneficiary’s eligibility for SSI benefits. The most important element of a Special Needs Trust is the trustee’s absolute discretion in determining the timing and amount of distributions. The discretionary status of the trust is necessary in order to keep the beneficiary eligible for public benefits. While there is no formal mechanism to ensure that trustees uphold their duty to provide for the child, if it is found that the trustee failed to inquire as to the welfare of the beneficiary they may be held personally liable for their failure to inquire into the beneficiaries status. See, Marsman v. Nasca, 573 N.E.2d 1025 (Ma. 1991).

Without absolute trustee discretion in making distributions, the trust corpus could be deemed income of the child, disqualifying them from SSI or Medicaid benefits (in Massachusetts, individuals who are eligible for SSI benefits are automatically eligible for Medicaid benefits). It is important to keep in mind that the purpose of the trust must be to add to and not replace existing governmental benefits. The trust document must explicitly instruct the trustee only to make distributions for items which are not covered by government benefit programs.

It is not necessary that a Special Needs Trust be created with funds sufficient to provide for care of the child over their entire lifetime, but at some point over the course of the trust this goal should be achieved. An experienced attorney with financial and estate planning expertise can help design the means to achieve this goal. With the assistance of an experienced attorney, there are several steps that parents can take to work toward adequate funding. Some potential strategies include (1) using the Special Needs Trust as a pour-over trust, with the trust to receive a portion of the parents’ estate on their death; (2) directing investment income into the trust; (3) placing real property into the trust as part of its corpus; and (4) encouraging family gifts to the trust, rather than directly to the child. There are many options available to the parents of a special needs child in order to ensure that the child is able to achieve adequate assistance over the course of his or her life. An experienced estate planner can advise any concerned parent of every option available and can help to achieve the most optimal and efficient vehicle for providing assistance to the child over the course of his or her lifetime.

This article was written by Nicholas J. Deleault who writes select pieces on estate planning for the Law Office of Goldstein and Clegg, LLC.

Back to homepage for Law Information

Common Questions Asked About Last Will Forms

WHAT IS A LAST WILL AND TESTAMENT? A Last Will and Testament controls the distribution of your property at death and you may give some one you trust guardianship over your children after your death. No property is transferred or effects will take place, a will is not effective as long as you’re living. CAN MY LAST WILL AND TESTAMENT BE CHANGED? Yes. Changes to a will are made by simply making a new will and destroying the old one. Or you can just add on to your will with a “Codicil”.

A Codicil is a legal document that must be signed and executed in the same way you executed your will. This is where downloadable, printable legal form websites will help you quickly draw up a new will or add to it. The best practice to use is to consult an attorney about changes to your will you want if you are afraid to make the original will invalid.

WHAT IS MY LEGAL RESIDENCE? Your legal residence is the state where you’re true fixed and permanent home, a place where if you’re temporarily absent you will return.

IS MY LEGAL RESIDENCE IMPORTANT WITH REGARD TO MY WILL? Yes. Your legal residence may affect which state you have to file your will in and the amount of state inheritance or estate tax that may be paid at death.

WHAT IS MY ESTATE? Your estate consists of all of your property, personal belongings, and cash which you own. You can also list things you are entitled to own at the time of your death. Your estate should also include your insurance policy and who is the primary, or even secondary beneficiary. You may also wish to divide your estate among several persons.

WHAT IS A BENEFICIARY? A beneficiary is the person whom you will leave your estate too. You may leave all your property to one single beneficiary or you can divide your estate among several people.

WHAT IS A SECONDARY BENEFICIARY? Those who will inherit your property if your primary beneficiary dies before your death. You can keep the chain going and include as many third beneficiaries, fourth, fifth, and so on.

CAN I DISPOSE OF MY PROPERTY IN ANY WAY? Yes, but not exactly in all states. Some states require that a married person give their spouse some part of their estate. Plus your guardianship should be chosen with great care because this person will be charged with the duty of raising your children and managing their legal affairs.

SHOULD I NAME A GUARDIAN FOR MY CHILDREN IN MY WILL? Yes. A guardian should be named in a will. This will ensure that your children and their portion of your estate is cared for and protected in case both parents die.

WHAT IS AN EXECUTOR? An executor or executrix (if female) a so-called “personal representative” is the person who will manage and settle your estate according to the will. You should also consider naming a substitute executor in the event that the named executor fails to act as the executor of your estate. WHAT IS PROBATE? A court procedure where a will is proved valid or invalid. Probate proceedings will also finalize your estate, taxes and guardianship of your children.

HOW LONG IS A WILL VALID? An executed and properly drawn will is valid until you change it or it is revoked. However new tax laws, marriage, birth of children, and sometimes a substantial change in property/assets can determine whether your will is adequate and your property/assets will pass in the manner you chose.

WHAT HAPPENS WHEN YOU DON’T MAKE A WILL? You have no say in how your property is divided.

WHAT HAPPENS TO PROPERTY HELD IN THE NAMES OF BOTH HUSBAND AND WIFE? Joint bank accounts and real property held in both names usually get passed to the survivor and NOT by the deceased’s will, depending on your states laws.

MLA Citation: “Will Information Sheet” The Naval Post Graduate School. 2006. Presidio of Monterey Legal Assistance Office. 12 Dec. 2006 <>.

Click here to find your state’s Last Will Form. provides downloadable and printable Last Will and Testament Forms.


NEED A Lawyer? Check out our Lawyer Directory!

Back to homepage for Law Information.

Nine Things You Should Know About Probate

Probate is often a time-consuming and confusing process for those who are involved. Most people lack a knowledge of the probate process because of inexperience with the process.

While probate is rarely easy, an adequate knowledge and understanding of the process can decrease stress, and increase your confidence that everything is being done properly. Anyone involved in probate should understand the following:

1 – In cases where a valid will exists, the individual named in the will as the executor is responsible to see that the deceased’s instructions are carried out.

2- In cases where a valid will does not exist, an individual will be appointed by the court as the administrator. The administrator will perform the duties of the executor.

3 – During probate creditors of the estate are provided with an opportunity to place claims for unpaid debt. The validity of those claims is determined by the court. Any claims that are valid will be paid out of the estate.

4 – Probate court is the home of the probate process. Laws and procedures vary from state-to-state. Some states have courts with the sole responsibility of overseeing probate.

5 – Although the length of probate will vary, it will usually last for six months to one year. More complex estates will typically take a greater amount of time.

6 – Inheritance cash advances are available for heirs to estates in probate. Cash advances provide part of the inheritance upfront and help the heir to avoid the long wait required by probate. Please visit for more information.

7 – Certain assets may not be subject to probate. Retirement accounts and life insurance policies normally name beneficiaries, which allows the beneficiary to obtain ownership of the asset without going through probate.

8 – Proper estate planning can make it possible to partially or completely avoid probate. Estate planning is a priority for those who wish to ensure an easier process for their heirs and beneficiaries. For guidance in estate planning seek the advice of a professional.

9 – Real estate that is tied up in probate can be sold during probate, without waiting for completion of the process. If you have real estate that is currently in probate and you are interested in selling, please visit

J.J. Chiles is the founder of, the leading source of online probate information and resources.


NEED A Lawyer? Check out our Lawyer Directory!

Back to homepage for Law Information

Questions About Wills, Living Wills and Powers of Attorney

Frequently Asked Questions About Wills, Living Wills and Powers of Attorney


The simplest way to ensure that your funds, property and personal effects will be distributed after your death according to your wishes is to prepare a will. A will is a legal document designating the transfer of your property and assets after you die. Usually, wills can be written by any person over the age of 18 who is mentally capable, commonly stated as “being of sound mind and body.”


Although wills are simple to create, about half of all Americans die without one (or Intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to the laws of your state. Wills are not just for the rich; the amount of property you have is irrelevant. A will ensures that what assets you do have will be given to family members or other beneficiaries you designate. If you have no apparent heirs and die without a will, it’s even possible the state may claim your estate.

Having a will is especially important if you have young children because it gives you the opportunity to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children who may be someone you do not even know.


What you generally need to make a will:

1) Your name and place of residence;

2) Names and addresses of spouse, children and other beneficiaries, such as charities or friends;

3) Alternate beneficiaries, in the event a beneficiary dies before you do;

4) Name and address of an Executor/ Executrix to manage your estate;

5) Name and address of an alternative Executor/Executrix, in the event your first choice is unable or unwilling to act;

6) Name and address of a guardian for your minor children;

7) Name and address of an alternative guardian, in the event your first choice is unable or unwilling to act;

8) The age you wish your minor children to have control of their inheritance;

9) Any burial requests you may have (cremation, where you want to be buried, etc.);

10) Your signature;

11) Two Witnesses’ signatures; and

12) Notarization.

Two of the most important items included in your will are naming a guardian for minor children and naming an Executor/ Executrix.


In most cases, a surviving parent assumes the role of sole guardian. However, it’s important to name a guardian for minor children in your will in case neither you nor your spouse is able and willing to act. The guardian you choose should be over 18 and willing to assume the responsibility. Talk to the person ahead of time about what you are asking. You can name a couple as co-guardians, but that may not be advisable. It’s always possible the guardians may choose to go their separate ways at some later date, and, if so, a custody battle could ensue. If you do not name a guardian to care for your children, a judge will appoint one, and it may not be someone you would have chosen.


An Executor/Executrix is the person who oversees the distribution of your assets in accordance with your will. Most people choose their spouse, an adult child, a relative, or a friend to fulfill this duty.

If no Executor/Executrix is named in a will, a Probate Judge will appoint one. Probate refers to the legal procedure for the orderly distribution of property in a person’s estate. The Executor/Executrix files the will in probate court, where a Judge decides if the will is valid. If it is found to be valid, assets are distributed according to the will. If the will is found to be invalid, assets are distributed in accordance with state laws.

Responsibilities usually undertaken by an Executor/Executrix include:

–Paying valid creditors;

–Paying taxes;

–Notifying Social Security and other agencies and companies of your death;

–Canceling credit cards, magazine subscriptions, etc.; and

–Distributing assets according to the will.


You’ll probably need to update your will several times during the course of your life. For example, a change in marital status, the birth of a child or a move to a new state should all prompt a review of your will. You can update your will by amending it by way of a Codicil or by drawing up a new one. Generally, people choose to issue a new will that supersedes the old document. Be sure to destroy the old will after you sign a new one.


The property included in your will may be subject to taxation. In planning your will, take into account the following:

—Federal estate taxes will generally be due if the net taxable estate is worth more than $1,000,000. This amount is scheduled to gradually increase from $1,000,000 in 2002/2003 to $3,500,000 in 2009 so that it will eventually shield $3,500,000 in gift or estate transfers from tax per taxpayer. Estates in excess of the exempt amount can be taxed at a rate from 37% to 50% (the top percentage is scheduled to gradually decrease to 45% in 2009). Also, note that these estate tax changes are scheduled to be repealed in 2010. If not extended, the tax law will revert to the estate and gift tax provisions in affect in 2001. Consult a tax or financial professional to determine a plan that is right for you and your family.

—State death or inheritance taxes

—Federal income taxes

—State income taxes

You may be able to minimize your estate tax by establishing a trust or giving gifts during your lifetime. You can also cover the cost of estate taxes by purchasing a life insurance policy intended to pay taxes. Talk to your life insurance agent to find out more about how this works.


Once your will is written, store it in a safe place that is accessible to others after your death. I suggest that you keep it in a fire proof box that you can purchase at any office supply store. I do not suggest that you keep your will in a safe deposit box because many states will seal your safe deposit box upon your death. Make sure a close friend or relative knows where to find your will.


A living will is not a part of your will. It is a separate document that lets your family members know what type of care you do or don’t want to receive should you become terminally ill or permanently unconscious. It becomes effective only when you cannot express your wishes yourself. Discuss your wishes as reflected in your living will with family members, and be sure all your doctors have a signed copy.


A power of attorney for health care (health care proxy) is not a part of your will. It is a separate document that authorizes someone you name to act in accordance with your medical intentions. It becomes effective only when you cannot express your wishes yourself. You should make sure that all your doctors have a signed copy.


A financial durable power of attorney is not a part of your will. It is a separate document that authorizes someone you name to act in accordance with your financial intentions. It becomes effective only when you cannot express your wishes yourself. You should make sure that all your financial professionals (stockbrokers, accountants, financial planners) and banks have a signed copy.


The end of your life is something you probably don’t want to dwell on, but thinking about what will happen to your loved ones and your assets and personal possessions is important. Making sure you’ve done all you can to make their lives easier will give you peace of mind. And once your will is drafted, you won’t have to think about it again unless something significant in your life changes.

Sheri R. Abrams is an Attorney in Fairfax, VA. Her practice is limited to the areas of Social Security Disability Law and the preparation of wills, living wills, health and financial powers of attorney. Ms. Abrams is a graduate of Boston University’s School of Management and the George Washington University School of Law. Ms. Abrams is rated “AV” by Martindale-Hubbell. More information can be found at


NEED A Lawyer? Check out our Lawyer Directory!

Why Probate?

Why Probate?

Nobody voluntarily chooses probate. People are too busy or preoccupied with health or other issues to plan. They pass away without a living trust and their heirs—-usually their children—- find that they can’t sell Mom or Dad’s house without a court order or can’t transfer Mom or Dad’s bank account without court approval. Even with a will, they may be forced to file a probate proceeding.

Alternatives to Probate

Because probate is expensive and time consuming, a responsible attorney first tries to determine if there is an alternative to probate. In California, the most common alternatives to probate are a Spousal Property Petition (if there is a surviving spouse) or a small estate transfer (if the value of the estate is less than $100,000). If these and other alternatives to probate are unavailable, then the only recourse for the decedent’s heirs is to file a probate proceeding.

Cost of Probate

Attorney’s fees and costs are set by law in California and are based upon the value of the estate. Here is the statutory fee schedule in California:

4% of the first $100,000

3% of the next $100,000

David R. Baker graduated from Hastings College of the Law in San Francisco in 1979 and passed the California State Bar Exam the same year. He has handled hundreds of hearings and trials in every county in the San Francisco Bay Area, and throughout his career he has handled probate and decedents estates. The present focus of his practice is Probate, Decedents Estates, and Living Trusts. He can only advise on matters relating to California law and California legal proceedings. His website is:

California Estate Planning


Estate planning is a process. It involves people -your family, other individuals and in many cases charitable organizations of your choice. It also involves your assets and all the various forms of ownership and title that those assets may take.

As you plan your estate, you will consider:

* How your assets will be managed for your benefit if you are unable to do so

* When certain assets will be transferred to others, either during your lifetime, at your death, or sometime after your death

* To whom those assets will pass

Estate planning also addresses your welfare and needs, planning for your own personal care and health care if you are no longer able to care for yourself. Like many people, you may at first think that estate planning is simply the writing of a will. But it encompasses much more. As you will see, estate planning may involve financial, tax, medical and business planning. A will is one part of that planning process, but other documents are needed to fully address your estate planning needs. The purpose of this material is to summarize the estate planning process and how it can address and meet your goals and objectives.

As you consider it further, you will realize that estate planning is a dynamic process. Just as people, assets and laws change, it may well be necessary to adjust your estate plan every so often to reflect those changes.


In starting to consider your estate plan, I ask my clients to complete a brief questionnaire to answer the first of the following questions and during our initial meeting we discuss the other questions:

* What are my assets and what is their approximate value?

* Whom do I want to receive those assets -and when?

* Who should manage those assets if I cannot, either during my lifetime or after my death?

* Who should have the responsibility for the care of my minor children, if any, if I become incapacitated or die?

* If I cannot take care of myself, who should make decisions on my behalf concerning my care and welfare?


Whatever the size of your estate, you should designate the person who, in the event of your incapacity, will have the responsibility for the management of your assets and your care, including the authority to make health care decisions on your behalf. How that is accomplished is discussed below in this material. If your estate is small in value, you may focus simply upon who is to receive your assets after your death and who should be in charge of its management and distribution.

If your estate is larger, we will discuss with you not only who is to receive your assets and when, but also various ways to preserve your assets for your beneficiaries and to reduce or postpone the amount of estate tax which otherwise might be payable on your death.

If one does no planning, then California law provides for the court appointment of persons to take responsibility for your personal care and assets. California also provides for the distribution of assets in your name to your heirs pursuant to a set of rules to be followed if you die without a will; this is known as “intestate succession.” If you die without a will and if you have any relatives (whether through your own family or that of your spouse), regardless of how remote, they will be your heirs. Nonetheless, they may not be the people you would want to inherit from you; therefore, a living trust or a will is the preferable approach.


Your estate consists of all property or interests in property which you own. The simplest examples are those assets which are in your name alone, such as a bank account, real estate, stocks and bonds, furniture, furnishings and jewelry.

You may also hold property in many forms of title other than in your name alone. Joint tenancy is a common form of ownership which takes assets away from control by will or living trust. Beneficiary designations on securities accounts and bank accounts are alternatives which must be carefully considered as well.

Finally, assets which have beneficiary designations, such as life insurance, IRAs, qualified retirements plans and some annuities are very important parts of your estate which require careful coordination with your other assets in developing your estate plan.

The value of your estate is equal to the “fair market value” of each asset that you own, minus your debts, including a mortgage on your home or a loan on your car.

The value of your estate is important in determining whether, and to what extent, your estate will be subject to estate taxes upon your death. Planning for the resources needed to meet that obligation at your death is another important part of the estate planning process.


A will is a traditional legal document which is effective only at your death to:

* Name individuals (or charitable organizations) to receive your assets upon your death (either by outright gift or in trust)

* Nominate an executor, appointed and supervised by the probate court, to manage your estate, pay debts and expenses, pay taxes, and distribute your estate in an accountable manner and in accordance with your will

* Nominate the guardians of the person and estate of your minor children, to care and provide for your minor children

Assets or interests in property in your name alone at your death will be subject to your will and subject to the administration of the probate court, generally in the county where you reside at your death.


A revocable living trust is also commonly referred to as a revocable inter vivos trust, a grantor trust or, simply, a living trust. A living trust may be amended or revoked by the person creating it (commonly known as “trustor,” “grantor,” or “settlor”) at any time during the trustor’s lifetime, as long as the trustor is competent.

A trust is a written agreement between the individual creating the trust and the person or institution named to manage the assets held in the trust (the “trustee”). In many cases, it is appropriate for you to be the initial trustee of your living trust, until management assistance is anticipated or required, at which point your trust should designate an individual, bank or trust company to act in your place.

The terms of the trust become irrevocable upon the trustor’s death. Because the trust contains provisions which provide for the distribution of your assets on and after your death, the trust acts as a substitute for your will, and eliminates the need for the probate of your will with respect to those assets which were held in your living trust at your death.

You should execute a will even if you have a living trust. That will is usually a “pour over” will which provides for the transfer of any assets held in your name at your death to the trustee of your living trust, so that those assets may be distributed in accordance with your wishes as set forth in your living trust.


Probate is the court-supervised process developed under California law which has as its goal the transfer of your assets at your death to the beneficiaries set forth in your will, and in the manner prescribed by your will. It also provides for the relatively quick determination of valid claims of any creditors who have claims against your assets at your death.

At the beginning of probate administration, a petition is filed with the court, usually by the person or institution named in your will as executor. After notice is given, and a hearing is held, your will is admitted to probate and an executor is appointed. If you die “intestate” (that is, without a will), your estate is still subject to probate court administration and the person appointed by the court to handle your estate is known as the “administrator.”

If the assets in your name alone at your death do not include an interest in real estate and have a total value of less than $100,000, then generally the beneficiaries under your will may follow a statutory procedure to effect the transfer of those assets pursuant to your will, subject to your debts and expenses, without a formal court-supervised probate administration.

A probate has advantages and disadvantages. The probate court is accustomed to resolving disputes about the distribution of your assets in a relatively expeditious fashion and in accordance with defined rules. In addition, you are assured that the actions and accountings of your executor will be reviewed and approved by the probate court.

Disadvantages of a probate include its public nature; your estate plan and the value of your assets becomes a public record. Also, because lawyer’s fees and executor’s commissions are based upon a statutory fee schedule computed upon the gross (not the net) value of the assets being probated, the expenses may be greater than the expenses incurred by a comparable estate managed and distributed under a living trust. Time can also be a factor; often distributions can be made pursuant to a living trust more quickly than in a probate proceeding.


Once you have determined who should receive your assets at your death, I can help you clarify and appropriately identify your beneficiaries. For instance, it is most important to clearly identify by correct name any charitable organizations you wish to provide for; many have similar names and in some families, individuals have similar or even identical names.

It is also important for you to consider alternative distribution of your assets in the event that your primary beneficiary does not survive you.

As for beneficiaries who by reason of age or other infirmity may not be able to handle assets distributed to them outright, trusts for their benefit may be created under your will or living trust.


After your death, the executor of your will and the trustee of your living trust serve almost identical functions. Both are responsible for ensuring that your wishes, as set forth in your will or living trust, are implemented. Although your executor is generally subject to direct court supervision, both the executor and the trustee have similar fiduciary responsibilities. The trustee of your living trust may assume responsibilities under that document while you are living.

While you may act as the initial trustee of your living trust, if you become incapable of functioning as a trustee, the designated successor trustee will then step in to manage your assets for your benefit. An executor or trustee may be a spouse, adult children, other relatives, family friends, business associates or a professional fiduciary such as a bank.

I discuss this matter will my clients. There are a number of issues to consider. For example, will the appointment of one of your adult children cause undue stress in his or her relations with siblings? What conflicts of interest are created if a business associate or partner is named as your executor or trustee? Will the person named as executor or successor trustee have the time, organizational ability and experience to do the job effectively?


A minor child is a child under 18 years of age. If both parents are deceased, a minor child is not legally qualified under California law to care for himself or herself. In your will, therefore, you should nominate a guardian of the person of your minor children to supervise that child and be responsible for his or her care until the child is 18 years old.

Such a nomination can avoid a “tug of war” between well-meaning family members and others if a guardian is required.

A minor is also not legally qualified to manage his or her own property. Assets transferred outright to a minor must be held for the minor’s benefit by a guardian of the child’s estate, until the child attains 18 years of age. You should nominate such a guardian in your will as well. In providing for minor children in your estate plan, you should consider the use of a trust for the child’s benefit, to be held, administered and distributed for the child’s benefit until the child is at least 18 years old or some other age as you may decide. You may also consider a custodian account under the California Uniform Transfers to Minors Act as an alternative in making specific gifts to minors.


Estate taxes are imposed upon an estate which has a net value, in 2002, of $1,000,000 or more. Under current law, that amount will increase, in uneven increments, to $3,500,000 in 2009. Estate taxes are scheduled to be repealed for 2010. In 2011, estate taxation will revert to the law which existed before the enactment of the 2001 tax law changes, so that an estate which has a net value of $1,000,000 or more will be subject to estate taxes. (See Estate Planning Under the 2001 Tax Relief Act: What To Know And What To Do). For estates which approach or exceed the exemption amount, significant estate taxes can be saved by proper estate planning, usually before death and, in the case of married couples, before the death of the first spouse. Estate planning for taxation purposes must take into account not only estate taxes, but also income, gift, property and generation-skipping taxes as well. Qualified legal advice about taxes should be obtained during the estate planning pr!



The nature of your assets and how you hold title to those assets is a critical factor in the estate planning process. Before you change title to an asset, you should understand the tax and other consequences of any proposed change. I will be able to advise you about such matters.

Community property and separate property

If you are married, assets earned by either you or your spouse while married and while a resident of California are community property. On the other hand, a married individual may own separate property as a result of assets owned prior to marriage or received by gift or inheritance during marriage. There are significant tax considerations which need to be addressed in the estate planning process with respect to both community property and separate property. There are also significant property interests to consider.

Separate property can be “transmuted” (that is, changed) to community property by a written agreement signed by both spouses and drafted in conformity with California law.

It is important to seek competent legal advice when determining what character your property is and how the property should be titled.

Joint Tenancy Property

Regardless of its source, if a property is held in joint tenancy, it will pass to the surviving joint tenant by operation of law upon the death of the first joint tenant. On the other hand, property held as community property or as tenants in common, will be subject to the will of a deceased owner.


A number of assets are transferred at death by beneficiary designation, such as:

* Life insurance proceeds

* Qualified or non-qualified retirement plans, including 401(k) plans and IRAs

* Certain “trustee” bank accounts

* “Transfer on death” (or “TOD”) securities accounts

* “Pay on death” (or “POD”) assets, a common title on U.S. Savings bonds

These beneficiary designations must be carefully coordinated with your overall estate plan. Your will does not govern the distribution of these assets.


If you do not make any arrangements in advance, a court-supervised conservatorship proceeding may be required if you become incapacitated.

Conservatorships are proceedings which allow the court to appoint the person responsible for your care and for the management of your estate if you are unable to do so yourself.

You should, therefore, select the person or persons you wish to care for you and your estate in the event that you become incapable of managing your assets or providing for your own care.

With respect to the management of your assets, the trustee of your living trust will provide the necessary management of those assets held in trust. However, to deal with assets which may not have been transferred to your living trust prior to your incapacity or which you may receive after incapacity, a durable power of attorney for property management should be considered. In such a power, you appoint another individual (the “attorney-in-fact”) to make property management decisions on your behalf. The attorney-in-fact manages your assets and functions much as a conservator of your estate would function, but without court supervision. The authority of the attorney-in-fact to manage your assets ceases at your death.

A durable power of attorney for health care allows your attorney-in-fact to make health care decisions for you when you can no longer make them yourself. It may also contain statements of wishes concerning such matters as life sustaining treatment and other health care issues and instructions concerning organ donation, disposition of remains and your funeral.


Can I Do It Myself?

Wills and trusts are legal documents which should be prepared only by a qualified lawyer. You should be wary of organizations or offices who are staffed by non-lawyer personnel and who promote “one size fits all” living trusts or living trust kits. An estate plan created by someone who is not a qualified lawyer can have enormous and costly consequences for your estate and may not achieve your goals and objectives. However, many other professionals and business representatives may become involved in the estate planning process. For example, certified public accountants, life insurance salespersons, bank trust officers, financial planners, personnel managers and pension consultants often participate in the state planing process. Within their areas of expertise, these professionals can assist in planning your estate.


The costs of estate planning depend on your individual circumstances and the complexity of documentation and planning required to achieve your goals and objectives. The costs generally will include my charges for putting your financial information into my computerized estate planning program which enables me to graphically show you the effects of alternate plans, discussing your estate plan with you and for preparing your will, trust agreement or other legal documents which you may need.

About The Author
Gerald F. Gerstenfeld

For over 50 years I have been advising clients on estate planning, how to avoid probate court, save taxes, protect dependents with special needs and more.

I’m also a Preferred Consumer’s contributing author [] and an exclusive estate planning attorney for the Los Angeles area [].

For more on estate planning and mediation tips and information visit The Law, Mediation And Arbitration Offices Of Gerald F. Gerstenfeld, Attorneys at Law website at