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Wills  |  Trusts & Trustees  |  Living Trusts  |  Probate


Wills

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 signed?

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 a Will?
If you die intestate (without making a Will), you do not get to choose who will receive your probate assets. The 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 of California.

There are at least five family changes where updating your Will is advisable:

1. Birth or adoption of a child or grandchild.
2. Marriage.
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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Trusts and Trustees

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 created?
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.

What  kind of property can I place in a Trust?
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 friend.

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.

Are Trustees compensated for the services they render?
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.

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Living Trusts

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 the future.

Can a Trust be revoked after it is created?
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.

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Probate

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 estate.

How much does it cost?
Guidelines for probate fees are set by State statute.

First $100,000 at 4%
Next $100,000 at 3%
Next $800,000 at 2%
Remainder at 1% (up to $9 million)

Examples:

If your GROSS estate is $300,000 - the legal fees are $9,000 for the attorney and $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 and 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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