No matter how large or how modest, everyone has an estate and something in common—you cannot take it with you when you die.
To ensure that your wishes are carried out, you need to provide instructions stating whom you want to receive something of yours, what you want them to receive, and when they are to receive it. You will, of course, want this to happen with the least amount paid in taxes, legal fees, and court costs.
That is estate planning—making a plan in advance, naming the people or organizations you want to receive the things you own after you die, and taking steps now to make carrying out your plan as easy as possible later. However, good estate planning is much more than that. It should also do the following:
- include instructions for your care and financial affairs if you become incapacitated before you die
- provide for the transfer of your business at your retirement, disability, incapacity, or death
- name a guardian for your minor children’s care and inheritance
- provide for family members with special needs without disqualifying them from government benefits
- provide for loved ones who might be irresponsible with money or who may need protection from creditors or in the event of divorce
- minimize taxes, court costs, and unnecessary legal fees, which may include funding assets into a living trust, completing or updating beneficiary designations, or otherwise aligning your assets with your estate plan
Importantly, estate planning is also an ongoing process, not a one-time event. You should review and update your plan as your family and financial circumstances (and the relevant laws) change over your lifetime.
Estate Planning Is for Everyone
Good estate planning is often more impactful for families with modest assets because the loss of time and funds as a result of poor estate planning is more detrimental.
Many People Do Not Plan
People put off estate planning because they think they do not own enough, they are not old enough, it will be costly or confusing, they will have plenty of time to do it later, they do not know where to begin or who can help them, or they just do not want to think about it. Then when something happens to them, their families have to pick up the pieces.
If You Do Not Have a Plan, Your State Has One For You—But You Might Not Like It
At your death: If you die without a valid estate plan, any assets owned in your individual name and without a beneficiary designation or other governing contract will be distributed according to your state’s intestacy laws, typically through a court-supervised probate proceeding. In many states, if you are married and have children, your spouse and children will each receive a share, even if your children are from a prior marriage or no longer minors. That means your spouse could receive only a fraction of your estate, which may not be enough to live on. If you have minor children, the court will control their inheritance. If both parents die (e.g., in a car accident), the court will appoint a guardian without knowing whom you would have chosen.
Given the choice—and you do have the choice—wouldn’t you prefer that these matters be handled privately by your family, not by the courts? Wouldn’t you prefer to keep control of who receives what and when? And if you have young children, wouldn’t you prefer to have a say in who will raise them if you cannot?
An Estate Plan Begins with a Will or Living Trust
A will provides your instructions, but it does not avoid probate. A will only directs how assets titled in your name and without a beneficiary designation or other governing contract will be distributed. The assets must still go through your state’s probate court before they can be distributed to your intended beneficiaries. (If you own property—usually real estate—in other states, multiple probates may be required, each one according to the laws in that state.) The process varies greatly from state to state, but it can become expensive with attorney’s fees, executor commissions, and court costs. It can also take anywhere from a few months to two years or longer. With some exceptions, probate proceedings are open to the public, and your creditors and any excluded heirs are notified of their opportunity to file for payment of a debt or a share of your estate. In short, the court system, not your family, controls the process and the timing of distributions to your beneficiaries.
Not everything you own will go through probate. Jointly-owned property and assets that let you designate a beneficiary (for example, life insurance, IRAs, 401(k)s, annuities, and certain other accounts) are not controlled by your will and usually will transfer to the surviving owners or beneficiary without probate. However, there are many problems with joint ownership and using these methods for estate planning. In addition, avoidance of probate is not guaranteed. For example, if a valid beneficiary is not named, the assets will have to go through probate and will be distributed along with the rest of your estate. If you name a minor as a beneficiary, the court will probably require a guardianship until the child reaches the legal age of majority for the state, often between eighteen and twenty-one years of age.
For these reasons, a revocable living trust (combined with a pour-over will) is preferred by many families and estate planning professionals. Establishing and funding a revocable living trust can avoid probate at death (including multiple probates if you own property in other states), prevent court control of assets if you become incapacitated during life, bring all of your assets (even those with beneficiary designations) together into one plan, and provide increased privacy. Because the trust is revocable, the instructions governing it can be changed by you at any time. The accompanying pour-over will is a backup measure in the event that any assets are not funded into your trust during your lifetime and provides that those assets should be poured over into your trust upon your death.
An estate plan that includes both a living trust and pour-over will is not necessarily more expensive initially than an estate plan that only includes a will, but it is more likely to avoid fees and costs later, considering that a funded trust can avoid court involvement at incapacity and death.
Planning Your Estate Will Help You Organize Your Records and Correct Titles and Beneficiary Designations
Would your family know where to find your financial records, titles, and insurance policies if something happened to you? Planning your estate now will help you locate and organize your information and documents, as well as find and correct errors.
Most people do not give much thought to the wording they put on titles and beneficiary designations. You may have good intentions, but an innocent error can create problems for your family at your incapacity or death. Beneficiary designations are often out-of-date or otherwise invalid. Naming the wrong beneficiary on your tax-deferred plan can lead to devastating tax consequences. Correcting titles and beneficiary designations now can save time, attorney’s fees, and taxes for your family later.
Estate Planning Does Not Have to Be Expensive
It is important to understand that trying to do your own estate planning to save money now can cost your family more later and may have consequences that you did not intend. An experienced estate planning attorney like San Francisco Estate Planning Attorneys will be able to provide critical guidance and peace of mind that your documents are prepared properly to meet your objectives.
The Best Time to Plan Your Estate Is Now
None of us really like to think about our own mortality or the possibility of being unable to make decisions for ourselves. This is exactly why so many families are caught off-guard and unprepared when incapacity or death does strike. Don’t wait. You can put something in place now and change it later—which is exactly the way estate planning should be done.
The Best Benefit Is Peace of Mind
Knowing you have a properly prepared plan in place—one that contains your instructions and will protect your family—will give you and your family peace of mind. Estate planning is one of the most thoughtful and considerate things you can do for your loved ones.
What Do We Do as California Estate Planning Attorney Specialists?
The San Jose Estate Planning attorneys and staff at Credere Law help people plan for when the difficult times come.
Make an appointment to meet with Credere Law for Estate Planning, Probate and Trust Administration. We offer in-person, phone, and Zoom appointments. Just call (650) 308-8624.
This blog does not constitute legal advice and does not establish an attorney-client relationship. If you need legal advice, please contact a lawyer directly.