California Probate - Law Offices of Janet Brewer Blog

What Do I Need to Know About Creating a Will?

“Creating a will is one of the most basic elements of estate planning. There are different types of wills you can choose from, including a simple will.”

A simple or basic will allows you to specifically say the way in which you want your assets to be distributed among your beneficiaries after your death. This can be a good starting point for creating a comprehensive estate plan because you may need more than just a basic will.

KAKE’s recent article entitled “What Is a Simple Will and How Do You Make One?” explains that a last will and testament is a legal document that states what you want to happen to your property and “worldly goods” when you die. A simple will can be used to designate an executor for the will and a legal guardian for minor children and specify who (or which organizations) should inherit your assets when you die.

A will must be approved in the probate process when you pass away. After the probate court reviews the will to make sure it’s valid, your executor will take care of the collection and distribution of assets listed in the will. Your executor would also be responsible for paying any debts owed by your estate.

Whether you need a basic will or something more complex, usually depends on a few factors, including your age, the size of your estate and if you have children (and their ages).

Having a will in place can be a good starting point for estate planning. However, deciding if it should be simple or complex can depend on a number of factors, such as:

• The size of your estate
• The amount of estate tax you expect to owe
• The type of assets and property you own
• Whether you own a business
• The number of beneficiaries you want to name
• Whether the beneficiaries are individuals or organizations (like charities)
• Any significant life changes you anticipate, like marriages, divorces, or having more children; and
• Whether any of your children or beneficiaries have special needs.

With these situations, you may need a more detailed will to plan how you want your assets to be distributed. In any event, work with an experienced estate planning attorney. With life or financial changes, you may need to create a more complex will or consider a trust. It is smart to speak with an estate planning attorney, who can help you determine which components to include in your plan and help you keep it updated.

If you have any questions about your current estate plan, please call or email us today.

Reference: KAKE (Nov. 23, 2020) “What Is a Simple Will and How Do You Make One?”

Should I Add that to My Will?

“A last will and testament is the foundation of an estate plan, which lets you plan for your estate after you’re gone. However, there are certain things that you might not want to put in your will.”

In general, a last will and testament is an easy and straightforward way to state who gets what when you die and designate a guardian for your minor children, if you (and your spouse) die unexpectedly.

MSN’s recent article entitled “Things you should never put in your will” explains that you can be specific about who receives what. However, attaching strings or conditions may not work because there’s no one to legally enforce the terms. If you have specific details about how a person should use their inheritance, whether they are a spendthrift or someone with special needs, a trust may be a better option because you’ll have more control, even from beyond the grave.

Keeping some assets out of your will can actually benefit your future heirs because they’ll get their inheritance faster. When you pass on, your will must be “proven” and validated in a probate court prior to distribution of your property. This process takes some time and effort, if there are issues—including something in your will that doesn’t need to be there. For example, property in a trust and payable-on-death accounts are two types of assets that can be distributed to your beneficiaries without a will.

Don’t put anything in a will that you don’t own outright. If you jointly own assets with someone, they will likely become the new owner. For example, this applies to a property acquired by married couples in community property states.

Property in a revocable living trust. This is a separate entity that you can use to distribute your assets which avoids probate. When you title property into the trust, it is subject to the trust’s rules.  Because a trust operates independently, you must avoid inconsistencies and not include anything in your will that the trust addresses.

Assets with named beneficiaries. Some financial accounts are payable-on-death or transferable-on-death. They are distributed or paid out directly to the named beneficiaries. That makes putting them in a will unnecessary (and potentially troublesome, if you’re inconsistent). However, you can add information about these assets in your letter of instruction (see below). As far as bank accounts, brokerage or investment accounts, retirement accounts and pension plans and life insurance policies, assign a beneficiary rather than putting these assets in your will.

Jointly owned property. Property you jointly own with someone else will almost always directly pass to the co-owner when you die, so do not put it in your will. A common arrangement is joint tenancy with rights of survivorship.

Other things you may not want to put in a will. Businesses can be given away in a will, but it’s not the best plan. Wills must be probated in court and that can create a rough transition after you die. Instead, work with an experienced estate planning attorney on a succession plan for your business and discuss any estate tax issues you may have as a business owner.

Adding your funeral instructions in your will isn’t optimal. This is because the family may not be able to read the will before making arrangements. Instead, leave a letter of instruction with any personal wishes and desires.

Reference: MSN (Dec. 8, 2020) “Things you should never put in your will”

Is the Pandemic Motivating People to Do Estate Planning?

“Lack of understanding around estate planning may be leading Americans to avoid getting a will, even as interest is on the rise due to the global pandemic, according to a new survey from financial services leader Policygenius.”

A survey from Policygenius, an online insurance marketplace, found that most people (60.4%) didn’t have a will, but that may be about to change. Nearly 40% of survey respondents (39.7%) said they feel it's more important to get a will because of the pandemic.

PR Newswire’s recent article entitled “Policygenius survey finds Americans with misconceptions about estate planning” reports that many respondents also held misconceptions about the estate planning process, which may a reason they avoid it.

The survey found that more than one in five respondents (22.8%) who think getting a will is too expensive overestimated the cost by hundreds or even thousands of dollars.

A total of 48.2% incorrectly thought that their possessions would automatically pass to their spouse, if they died without a will. That may suggest that people may not be creating wills because they think they don't need them.

There were 24.1% respondents who said that they don't have a will because they haven't had time to put one together, and more than half of those respondents (62%) were parents.

The survey also found that respondents prioritized family, with more than a third of them (35.9%) saying that having a child is the most important life event for someone, if they want to create a will. About two-thirds (65.5%) said that making the process of inheritance as easy as possible is one of their top three important issues, when getting a will.

Just 39.3% knew that if someone passes away without a will, a court will determine who gets their assets.

The Policygenius survey is based on responses from a nationally representative sample of 2,689 Americans ages 25 and over. It was conducted by SurveyMonkey from July 16 through July 17, 2020.

Ask an experienced estate planning attorney about a will and a comprehensive estate plan. Contact our office today to schedule your consultation.

Reference: PR Newswire (Dec. 2, 2020) “Policygenius survey finds Americans with misconceptions about estate planning”

Is a Tax Change a Good Time to Check My Will?

A last will and testament can make certain that your goals for legacy and asset disposition are satisfied and carried out. However, what most people fail to grasp is that a will needs regular review—especially if the document was written or involved the creation of a trust prior to passage of tax reform, the Tax Cuts and Jobs Act (TCJA), in 2017, says Financial Advisor’s recent article entitled “Tax Changes Make This A Good Time To Revise A Will.”

Wills can pass on assets, but taxes have come to greatly impact how much money is passed on. People usually understand the primary components, including the tax implications, of their wills.

These include:

• The unlimited marital deduction
• Applying current rules to make non-taxable gifts of up to $15,000 per person
• The current estate tax exemption of $11.58 million
• Health care directives
• Naming trustees and executors; and
• Creating long-term trusts with non-taxable asset transfers.

Wills and trusts were created prior to the passage of the TCJA may not consider that reform changed the amount which can be exempted from estate taxes.

The law more than doubled the amount that can be exempted from estate taxes. The potential tax changes could cause many more Americans to have a taxable estate, and it’s important to have a full understanding of your assets and carefully decide who you want to receive them. You must also decide if you want them passed outright or through a trust.

Privacy is a good reason why some people often prefer trusts. They also like the quick processing and avoiding probate.

Estate plans should be reviewed every few years, and wills should be reviewed more frequently because life changes are the biggest reason for trouble in revising wills.

Divorce, separation or marriage; the birth or adoption of children, as well as a child reaching adulthood; and changes to finances, location, and health all can play important roles.

Reference: Financial Advisor (Nov. 9, 2020) “Tax Changes Make This A Good Time To Revise A Will”

No Time Like the Present Pandemic to Get the Estate Plan Going

There’s nothing like a once-in-a-lifetime global pandemic to focus one’s thinking. 2020 has been one for the books.

The pandemic has made many people focus on depressing things, like death. Many of us are worth more dead than alive.

Federal News Network’s recent article entitled “It’s your estate, but who gets it?” says that lack of control is one of the frustrating things about this already terrifying pandemic. We can wear masks, keep our distance and avoid crowds, but then what?

There are some very important and valuable things that are still under your control. One of these is estate planning.

Any number of things could have occurred in 2020 that are off your radar because you’re still adjusting to the many changes the pandemic has brought to our everyday lives.

Many people see their estate plan as one of life’s necessary chores. Once it’s signed, they simply file it away and forget about it. However, an estate plan should be reviewed regularly to be certain that it continues to meet your needs. Here are just a few of the life events that make it essential for you to review and possibly revise your estate plan with an experienced estate planning attorney:

• The birth or adoption of a child
• You are contemplating divorce
• You have recently divorced
• Your child gets married
• Your child develops substance abuse problems or has issues with managing finances
• Those you’ve named as executor, trustee, or agents under a power of attorney have died, moved away, or are no longer able to fulfill these obligations
• Your child faces financial challenges
• Your minor children reach the age of majority
• There has been a change in the law that impacts your estate plan
• You get a sizeable inheritance or another windfall.
• You have an estate plan but can’t locate it
• You acquire property; or
• You move to another state.

If any of these events occur, talk to your estate planning attorney to see if it is necessary to revise your estate plan to address these issues.

Reference: Federal News Network (Nov. 4, 2020) “It’s your estate, but who gets it?”

Do I Need to Name a Guardian for My Children in the Will?

“Why naming a guardian for your child is important.”

Many young couples with children and bills to pay may look at you askance, when asked about estate planning and say, “what estate?”

However, a critical part of having a will—one frequently overlooked—is naming a guardian. If you don’t name a guardian, it could result in issues for your children after your death. Your child might even be placed in a foster home.

For a young family, designating a guardian is another good reason to draft a will. If you and your spouse die together with no guardian specified in a will, the guardian will be chosen by the court.

In a worst-case scenario, if you have no close family or no one in your family who can take your child, the court will send them to foster care, until a permanent guardian can be named.

The judge will collect as much information as possible about your children and family circumstances to make a good decision.

However, the judge won’t have an intimate knowledge of who you know or which of your relatives would be good guardians. This could result in a choice of one of the last people you might pick to take care of your child.

Try to find common ground, by agreeing to a set of criteria you want in a guardian. This could include the following:

• The potential guardian’s willingness to be a guardian
• The potential guardian’s financial situation
• Where the child might live with that person
• The potential guardian’s values, religion, or political beliefs
• The potential guardian’s parenting skills; and
• The potential guardian’s age and health.

Next, make a decision, get the chosen guardian’s consent, write it all down, and then set out to create a will.

Ask an experienced estate planning attorney to help you do it correctly.

For a related podcast, you can listen to Janet talk about issues relating to minor children and guardianships (along with answering some listener's questions about estate planning in general) on NPR's Your Legal Rights.

Reference: Lifehacker (Oct. 27, 2020) “Why You Should Name a Guardian for Your Kids Right Away”

Will a ‘Will’ Really Pay Off?

“A will itself is a legal document that describes the process of splitting up one’s personal property and possessions among family and loved ones.”

Wills are often seen as something that only comes up when an elderly person passes away. Because of this notion, many people think that a will is something they’ll only need to worry about decades from now. However, even young adults can benefit from currently having a will.

The Charleston Gazette-Mail’s recent article entitled “Don't have a will? Now might be the time to change that” explains that having a will provides you with a layer of security for your family.

The process of drafting a will itself is pretty simple. A person can get a sense of comfort knowing that their final wishes and requests will be known and respected.

The creation of most wills starts with a person contacting an experienced estate planning attorney. He or she will usually send them a questionnaire to complete that asks about the spelling of their names and those of family members, as well as the items and properties they want to list. Once the attorney has that information, the client and the attorney meet to talk about the goals of the client. The attorney will get back to the client in a few weeks with a draft or estate plan. After a review, the client returns to execute the document before witnesses and a notary.

It truly is important for young people to have wills, especially those who are unmarried or have children. If you have young children, your will states the guardians for your children.

If a parent without a spouse doesn’t name a guardian in a will for their child, the court will make a selection.

Estate planning attorneys usually will charge a flat fee for a drafting will. While there are alternatives to the traditional process, going online to find a will-making program isn’t recommended, especially if you have a complex estate. These should be left to experienced estate planning attorneys. However, even for a Regular Joe, most experts say to avoid these sites entirely.

Attorneys can make a lot of money from these do-it-yourself will websites because they often result in litigation. Some of these websites can cause errors in the drafting of a will. This leads to a law firm making far more money than they would have if the client had simply drafted a will with an estate planning lawyer in the first place.

Death is an uncomfortable topic for many people. Many people don’t know what options are available, and they’re often scared to ask. However, with COVID-19, people are beginning to realize the importance of a will and a complete estate plan.

Reference: The Charleston Gazette-Mail (Aug. 23, 2020) “Don't have a will? Now might be the time to change that”

How Do I Find a Good Estate Planning Attorney?

“Estate planning is a systematic method that manages the personal and financial matters of a person in case of death. The legal document for the necessary plan for death is called the Last Will and Testament, which includes the set of instructions for the condition and distribution of the estates.”

About 68% of Americans don’t have a will. With the threat of the coronavirus on everyone’s mind, people are in urgent need of an estate plan.

To make sure your plan is proper and legal, consult an experienced estate planning attorney. Work with a lawyer who understands your needs, has years of experience, and knows the law in your state.

EconoTimes’ recent article entitled “Top 3 Estate Planning Tips When Seeing An Attorney” provides several tips for estate planning, when seeing an attorney.

Attorney Experience. An estate planning attorney will have the experience and specialized knowledge to help you, compared to a general practitioner. Look for an attorney who specializes in estate planning.

Inventory. List everything you have. Once you start the list, you may be surprised by the tangible and intangible assets you possess.

Tangible assets may include:

• Cars and boats
• Homes, land, and any other real estate
• Collectibles like art, coins, or antiques; and
• Other personal possessions.

Your intangible assets may include:

• Mutual funds, bonds, stocks
• Savings accounts and certificates of deposit
• Retirement plans
• Health saving accounts; and
• Business ownership.

Create Your Estate Planning Documents. Prior to seeing an experienced estate planning attorney, he or she will have you fill out a questionnaire and to bring a list of documents to the appointment. In every estate plan, the core documents often include creating a last will and powers of attorney, as well as coordinating your Beneficiary Designations on life insurance and investment accounts. You may also want to ask about a trust and, if you have minor children, selecting a guardian for their care if you should pass away. You should also discuss estate taxes with the attorney.

You can read more about how our process works, the experience and expertise we offer, how we can make sure we are a good fit for your needs, and how to get started today right here.

Reference: EconoTimes (July 30, 2020) “Top 3 Estate Planning Tips When Seeing An Attorney”

When Exactly Do I Need to Update My Will?

“It is also important to realize that it isn’t merely “why” you are updating your will, but “when” you are updating that can make all the difference. Acting too late (or too early) may mean your changes are no longer appropriate or even immediately invalidated.”

Many people say that they’ve been meaning to update their last will and testament for years but never got around to doing it.

Kiplinger’s article entitled “12 Different Times When You Should Update Your Will” gives us a dozen times you should think about changing your last will:

1. You’re expecting your first child. The birth or adoption of a first child is typically when many people draft their first last will. Designate a guardian for your child and who will be the trustee for any trust created for that child by the last will.

2. You may divorce. Update your last will before you file for divorce, because once you file for divorce, you may not be permitted to modify your last will until the divorce is finalized. Doing this before you file for divorce ensures that your spouse won’t get all of your money, if you die before the divorce is final.

3. You just divorced. After your divorce, your ex no longer has any rights to your estate (unless it’s part of the terms of the divorce). However, even if you don’t change your last will, most states have laws that invalidate any distributive provisions to your ex-spouse in that old last will. Nonetheless, update your last will as soon as you can, so your new beneficiaries are clearly identified. 

4. Your child gets married. Your current last will may speak to issues that applied when your child was a minor, so it may not address your child’s possible divorce. You may be able to ease the lack of a prenuptial agreement, by creating a trust in your last will and including post-nuptial requirements before you child can receive any estate assets.

5. A beneficiary has issues. Last wills frequently leave money directly to a beneficiary. However, if that person has an addiction or credit issues, update your last will to include a trust that allows a trustee to only distribute funds under specific circumstances.

6. Your executor or a beneficiary die. If your estate plan named individuals to manage your estate or receive any remaining funds, but they’re no longer alive, you should update your last will.

7. Your child turns 18. Your current last will may designate your spouse or a parent as your executor, but years later, these people may be gone. Consider naming a younger family member to handle your estate affairs.

8. A new tax or probate law is enacted. Congress may pass a bill that wrecks your estate plan. Review your plan with an experienced estate planning attorney every few years to see if there have been any new laws relevant to your estate planning.

9. You come into a chunk of change. If you finally get a big lottery win or inherit money from a relative, update your last will so you can address the right tax planning. You also may want to change when and the amount of money you leave for certain individuals or charities.

10. You can’t find your original last will. If you can’t locate your last will, be sure that you replace the last will with a new, original one that explicitly states it invalidated all prior last wills.

11. You purchase property in another country or move overseas. Many countries have treaties with the U.S. that permit reciprocity of last wills. However, transferring property in one country may be delayed, if the last will must be probated in the other country first. Ask your estate planning attorney about having a different last will for each country in which you own property.

12. Your feelings change for a family member. If there’s animosity between people named in your last will, you may want to disinherit someone. You might ask your estate planning attorney about a No Contest Clause that will disinherit the aggressive family member, if he or she attempts to question your intentions in the last will.

If you have any questions about your current will or any other estate planning documents, please call or email us today.

Reference: Kiplinger (May 26, 2020) “12 Different Times When You Should Update Your Will”

What Does My Estate Plan Look Like after Divorce?

“Some marriages end in noise and pain. Other marriages drift away quietly with the signing of documents and only a hint of acrimony.”

Planning an estate after a divorce involves adopting a different type of arithmetic. Without a spouse to anchor an estate plan, the executors, trustees, guardians or agents under a power of attorney and health care proxies will have to be chosen from a more diverse pool of those that are connected to you.

Wealth Advisor’s recent article entitled “How to Revise Your Estate Plan After Divorce” explains that beneficiary forms tied to an IRA, 401(k), 403(b) and life insurance will need to be updated to show the dissolution of the marriage.

There are usually estate planning terms that are included in agreements created during the separation and divorce. These may call for the removal of both spouses from each other’s estate planning documents and retirement accounts. For example, in New York, bequests to an ex-spouse in a will prepared during the marriage are voided after the divorce. Even though the old will is still valid, a new will has the benefit of realigning the estate assets with the intended recipients.

However, any trust created while married is treated differently. Revocable trusts can be revoked, and the assets held by those trusts can be part of the divorce. Irrevocable trusts involving marital property are less likely to be dissolved, and after the death of the grantor, distributions may be made to an ex-spouse as directed by the trust.

A big task in the post-divorce estate planning process is changing beneficiaries. Ask for a change of beneficiary forms for all retirement accounts. Without a stipulation in the divorce decree ending their interest, an ex-spouse still listed as beneficiary of an IRA or life insurance policy may still receive the proceeds at your death.   

Divorce makes children assume responsibility at an earlier age. Adult children in their 20s or early 30s typically assume the place of the ex-spouse as fiduciaries and health care proxies, as well as agents under powers of attorney, executors and trustees.

If the divorcing parents have minor children, they must choose a guardian in their wills to care for the children, in the event that both parents pass away.

Ask an experienced estate planning attorney to help you with the issues that are involved in estate planning after a divorce. If you have any questions about your current estate plan, please call or email us today.

Reference: Wealth Advisor (July 7, 2020) “How to Revise Your Estate Plan After Divorce”