Chula Vista | San Diego | Attorney Michael Nichols

Estate Planning

Have you executed a durable power of attorney or a health care directive? Who will be the guardian(s) of your children? Have you maximized your estate for your heirs? Having a plan for how your affairs will be handled in the event of incapacity, incompetence or death is critically important. Unfortunately, people often fail to take the time to execute an estate plan because of the demands of daily life. We can help you prepare, and prevent loved ones from having to absorb unnecessary costs, untimely delays or worse complications that come when a plan is not in place.

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LAST WILL & TESTAMENT

Will writing is an important part of the estate planning process. By writing and properly executing a will, an individual can choose who receives what portion of his or her estate, can bequest specific belongings to particular beneficiaries, and can provide for charities.

By contrast, the estate of an individual who dies without a will, or intestate, is divided among beneficiaries in a manner specified by the applicable law where he or she lives.

In developing an estate plan, wills are frequently used in conjuction with trusts in order to maximize an estate by circumventing the probate process.

TRUSTS

Trusts are commonly used in estate planning to circumvent costs and delays frequently associated with the probate process.

The person who creates and transfers assets to a trust is called a trustor or settlor. The person charged with administering the trust is the trustee, and the person receiving the assets of the trust is the beneficiary.

Other benefits of Trusts are the ability to protect minors' inheritance until they mature, as well as to provide greater privacy due to the ability to avoid probate.

Helpful Links

Importance of Funding a Trust

California Simple (Statutory) Will

AARP

PROBATE

Probate is a public legal process used to prove the validity or invalidity of a will. If a person dies without a will, or “intestate” then the probate code will govern how their estate is distributed.

California’s intestate succession laws provide a schema for distribution of assets in the following order: spouse, children, parents, brothers and sisters, then down the line of familial relation. If there is no next of kin, then the property goes to the state of California.

If you want your estate distributed in a certain manner then you want execute a will or a trust. A trust is more expensive to create than a will but is generally much less expensive to administer after death, it is private, and it has more flexibility than a will. When utilizing a trust a complete inventory of your assets and debts is not filed in the public records of the court as they are in a probate proceeding.

Formal probate proceedings may be required when a decedent has assets that are held outside of a trust that exceed $150,000 or when there is real property that has a gross value of more than $50,000. There are exceptions for property held in joint tenancy, community property, and other exceptions based on the type of property.

GUARDIANSHIP

Parents with minor children should address who will raise them, and who will handle the money they inherit until they become adults. This is accomplished by a nomination of guardianship. When considering who to appoint as the person to care for your children in the event of incapacity or death, the primary consideration should be who will take the best care of the children. Hopefully you will have life insurance sufficient to provide for your children until they are able to care for themselves.

Many people create trusts with multiple distributions to their children over time, for example one distribution upon graduation from college then at one or two other events or ages, so that the child has an opportunity to gain some life experience before taking control of a large sum of money when they turn 18 years old.