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Wills | Trusts & Trustees | Living
Trusts | Probate
What is a Will?
A Will is an instrument by which a person makes a disposition
or gift of his or her property. The gifts do not take
effect until the time of the testator’s death.
To be a valid Will, the Will must meet the requirements
and formalities of state law.
What is an Executor ?
The Executor is the person you name to carry out the directions
in your Will after your death. After your death, the Executor
must be appointed by the Court before he or she can act.
In your Will, you may designate the person you wish for
the Court to appoint as Executor. You may wish to name
one or two successor Executors, to act in the event your
first choice does not or cannot serve.
What if I want to cancel or change my Will after it is
Do not write on your will or mark through any words. Even
small changes or markings could void the entire will. If
you wish to change your will, we can help you implement
the updates without invalidating your will. If you
wish to cancel or change your will, you should
be as diligent in seeking legal advice as
you were when you created your will.
Who will get my property if I die without
If you die intestate (without making a Will), you do
not get to choose who will receive your probate assets.
state government decides for you, and each state’s
laws are different.
In California, if you die intestate, the persons who inherit
from you depend upon whether you are married or single,
whether you have children, and other factors. It also may
depend upon the nature of your property.
Does having a will mean that my estate will
NOT have to go through probate?
No! Wills do not by themselves avoid probate in the State
There are at least five family changes where updating your
Will is advisable:
1. Birth or adoption
of a child or grandchild.
3. Divorce (either your own or a family member's).
4. Death or disability of a beneficiary under your will.
5. Death or disability of your Executor.
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What is a Trust?
A Trust is an interest in property held by one person for
the benefit of another. A Trust involves three persons:
the Grantor, the Trustee and the Beneficiary.
How is a Trust
A Trust is created when the property owner (the Grantor)
transfers title and certain incidents of ownership in the
property to another person (the Trustee) for the benefit
or use of a third party (the Beneficiary).
For the Trust to constitute an effective transfer of title
and ownership, it must comply with all requirements of law.
Your legal advisor can help you determine if you need a Trust
in your situation.
of property can I place in
You have a lot of options. A Trust can hold securities, such
as common stock and mutual funds. You can also place certain
real estate and other types of property into a Trust. Your
attorney or other advisor can guide you in selecting property
that is appropriate in your situation.
How do I select a Trustee?
The Trustee should be someone you can rely upon to act in
the best interests of the Beneficiary of the Trust. The person
can be a family member, an advisor or even a trustworthy
In selecting the Trustee, you should look for someone who
has sound judgment, good business sense, integrity and stability.
A Trustee also can be a bank or other financial institution,
if it has trust powers and otherwise qualifies.
compensated for the services
The Trustee generally is entitled to reasonable compensation
for services rendered. If you are setting up the Trust, you
generally can set the compensation, or you can provide that
the Trustee shall serve without compensation. This is often
the case when a family member is named as the Trustee.
What is a Living Trust?
A Living Trust, or inter vivos trust, takes effect during
the Grantor’s lifetime. The Trustee holds legal title
to the property for the benefit of the Beneficiary. A Living
Trust is a type of Revocable Trust, as it generally can
be revoked or cancelled during the Grantor’s lifetime.
A revocable Living Trust is useful to manage your
property in the future, especially if you are elderly,
ill or incapacitated, or likely to become incapacitated in
Can a Trust
be revoked after it is
Yes, sometimes. Certain Trusts can be rescinded or canceled
after they are created. In a Living Trust or a Revocable
Trust, the Grantor (the person who creates the Trust) reserves
the right to revoke the Trust during his or her lifetime.
Should I try to avoid probate by creating
a Living Trust?
Yes! A Living Trust is an excellent planning tool to avoid
the high cost of a probate proceeding.
What is Probate?
Probate is a court proceeding in which a Will is proved to
be valid or invalid. The term also means any matter related
to the Estate of a Decedent, whether the person died with
or without a Will.
My father left
only a small amount of property
when he died. Is there a
way to avoid the expense
of formal probate proceedings?
Yes. There may be ways to avoid the time and expense of formal
probate, depending upon your father’s circumstances.
You may wish to seek legal advice to determine
if summary proceedings are appropriate for your father’s
How much does it cost?
Guidelines for probate fees are set by State statute.
$100,000 at 4%
Next $100,000 at 3%
Next $800,000 at 2%
Remainder at 1% (up to $9 million)
If your GROSS estate is $300,000 - the legal fees are $9,000 for the attorney
$9,000 for the executor for a total of $18,000.
If your GROSS estate is $600,000 - the legal fees are $15,000 for the attorney
15,000 for the executor for a total of $30,000.
Merrilee A. Boyack, Attorney at Law
Practicing Law in the State of California & Utah
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2847 North 50 West, Lehi UT 84043
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