Frequently Asked Questions
Susan has answered some common questions about Estate Planning, including Trusts, Wills, Advance Health Care Directives and Powers of Attorney. She also has a section devoted to Trust Litigation. She hopes these answers will help you further understand how Estate Planning works to help you and your loved ones. However, Susan understands that these only provide a cursory overview of questions people have, and she welcomes you to bring any questions you might have about your Estate Plan to your meeting. Her goal is to make sure that her clients feel confident in understanding their Estate Plan, so don't worry about inundating her with hard questions!
*Please note that these are generic answers--your specific case may be different. These FAQs do not constitute legal advice; Susan can only advise you as your attorney after you've signed an agreement with her.
Estate Planning FAQs
What is the difference between a will and a trust?
Both Wills and Trusts are used in estate planning, but they serve different functions. A Will operates only after death, but a Trust operates both during lifetime and after death. A Will’s function is simply to give your assets away after your death, but a Trust is a more flexible tool that can help to provide care for you during your senior years or during disability and then give your assets away after your death. A Trust can also extend after death to provide care for your loved ones who are either too young to care for themselves or who are disabled and unable to care for themselves.
What should I transfer into my revocable trust?
That’s a great question, and one that should be answered on a case-by-case basis by your attorney. However, generally speaking you want to transfer as much into your trust as possible that would otherwise be subject to probate. Assets such as retirement accounts, life insurance policies, jointly owned accounts and other security accounts that have a beneficiary designation will not be subject to probate.
How do I transfer assets into my revocable trust?
To transfer most assets into a trust, you will need to change the title of the asset. For real property, this is done with a deed. For bank accounts, this is done by completing the paperwork necessary for the bank to change the title (or “name”) on the account. Assets that do not have a title (such as your personal effects and business interests) can be transferred with an Assignment. Please check with your attorney to make sure that you are properly transferring your assets.
What’s the difference between an irrevocable and a revocable trust?
A revocable Trust is one that can be changed (amended) or terminated (revoked.) An irrevocable Trust is one that cannot be amended or revoked.
I don’t own much and just want everything to go to my kids—do I even need a will?
I would be happy to look over a list of your assets to determine if your loved ones would need to go through probate in order to settle your estate after your death. If your estate would require probate, and if you don’t have an estate plan, the State of California has one for you. The legal name for it is “intestacy,” and it generally requires probate. However, if you do not want your assets to be distributed according to intestacy and to be managed by the executor appointed under the laws of intestacy, you should have a Will in order to change it to reflect your wishes.
Why can’t I write my own will?
You can. However, I have handled enough probate cases to know that very few laymen are able to draft Wills that will be honored by the probate court. I consider estate planning to be a gift that you give your loved ones because a well-drafted plan can ease the pain and stress of losing someone they love (you!). Click here for a link to a blog post where I discuss the problems I ran into when a woman tried to write her own will.
What’s the difference between a Power of Attorney and an Advance Health Care Directive and why are they important?
A Power of Attorney gives someone other than the signer the authority to act on behalf of the signer (an “agent”). Usually we refer to a financial POA as simply a “Power of Attorney” or a “General Power of Attorney.” If you limit the authority of the agent (such as to only being able to sell your house or for only six months), you would call the POA a “Limited Power of Attorney.”
Most Advance Health Care Directives nominate someone else to make health care decisions for the signer, and in that way, the AHCD is a POA limited to health care decisions. In California, an AHCD can also give the agent guidelines for making those health care decisions. This way if the agent is unavailable, health care providers can follow these guidelines even without the agent. An AHCD can also name a primary physician.
Is an Advance Health Care Directive the same thing as a Durable Power of Attorney for Health Care?
Until 1993, if you wanted to name someone else to make health care decisions for you, the only option available to California residents was the Durable Power of Attorney for Health Care which could only nominate an agent for you to make these decisions if you were not able to make them for yourself.
In 1993 the legislature enacted laws to allow you more options while maintaining your right to name an agent for your health care decisions. Recognizing that not everyone has someone to nominate as their agent, the legislature allows you to give directions for your health care decisions even if you do not nominate someone as your agent. This can include decisions about removing and rejecting life support, the treatment of your remains after death and disposition of your body parts. You also may name someone as your primary physician.
So the Advance Health Care Directive is a more expansive document than a Durable Power of Attorney for Health Care.
When do these documents take effect?
That depends on the specific document that you are asking about. It would be best to ask you attorney for a full explanation before signing any document.
Trust Litigation FAQs
What is Trust Litigation?
Whenever a person who has an interest in a Trust needs to enforce the Trust in court, that lawsuit is considered “Trust Litigation.” While this lawsuit may be in the probate division of the Superior Court, it is different than the Probate of an estate.
What are my rights as a beneficiary of a trust?
Once a Trust becomes irrevocable, a Beneficiary of a Trust has the right to have a copy of the Trust document, to receive periodic accountings and to be kept generally informed of the actions of the Trustee.
How does a beneficiary enforce their rights when a Trustee is not cooperating?
The first step is generally to request the Trustee in writing to remedy their behavior. If the Trustee does not comply, a beneficiary may sue a Trustee in court for violating the Trustee’s duties.
What are my rights as a Trustee?
The Trust document itself is the first place to look to determine your rights as a Trustee.
What are my obligations as a Trustee?
If you are a Trustee, you have a duty to administer the Trust according to the terms of the Trust, to act loyally to all beneficiaries, to keep the beneficiaries reasonably informed of the administration of the Trust, to account to the beneficiaries on a regular basis, to protect Trust assets, and to not delegate your duties when you would be reasonably expected to perform them yourself. All of these responsibilities can be found in Probate Code sections 16000-16069.
Is there anything else I need to know before I accept the position as Trustee?
You will be held to a high standard of care and will be expected to act on behalf of the Beneficiary and in the Beneficiary’s best interests at all times. This includes safeguarding valuables, investing prudently and maintaining accurate Trust records.
How much work is it to be a Trustee? Where is a checklist of things I need to do?
It is impossible to answer this question because it varies so much from case to case. How much work and exactly what you need to do depend on what assets are in the Trust estate. Put together a list of Trust assets and then schedule a consultation with Susan so she can guide you through the process.
If I sue the Trustee, when will I get my money?
Lawsuits can take years to get to trial, but it may be worth the wait to you. Also you may be able settle before going to trial.
Can I sue the Trustee on my own or do I need a lawyer?
You can represent yourself in court without a lawyer, but a lawyer can be helpful to navigate the court system, to obtain information for you, to negotiate a settlement and to try your case in front of a judge.