Frequently Asked Questions
While a website is not going to answer all of your questions, the following are some of the most common. We are available to answer any additional questions you may have.
What will happen to my property if I die without a Will or Trust?
If you die without a will or trust, the state determines who will be your ultimate heirs. This distribution plan can be found in the intestacy statues of each state. The applicable state can be either the location of your legal residence (personal property), or the state in which your assets are located (real property). In the state of California, for example, the law requires that without a valid will or trust in place, community property goes entirely to the surviving spouse, and separate property goes to the surviving spouse and children (if any), in this order: If the decedent had only one child, the spouse gets half and the child gets half. If the decedent had more than one child, the spouse gets one-third and the children divide two-thirds among them equally. (The children, if any, of predeceased children take their parent’s share.) If the decedent leaves no spouse or direct lineal descendants, parents (or their lineal descendants if they are predeceased) would take the estate.
What if I create a joint tenancy with my child?
This is a disadvantageous way to plan an estate. The problem with putting your child’s name on the title to your property as a joint tenant is that while it will avoid probate, creditors of the child will be able to reach the joint tenancy property. It may also create a taxable gift when none is expected, and may not be consistent with your ultimately desired distribution.
Why should I have a Living Trust?
Not only does a Living Trust provide for the disposition of your property (like a Will), but it also offers the following benefits:
- Provides for the immediate transfer of assets after death (if desired.)
- Allows for a smooth transition of management upon incapacity or death.
- Avoids the expense and hassle of probate proceedings.
- Minimizes estate taxes and defers payment of estate taxes for married couples.
- Allows for continued control over assets after death or incapacity.
- Provides security to you and your loved ones.
- Offers flexibility.
Will I still have control over my property if I establish a Living Trust?
Absolutely! While you are alive and mentally competent, you have complete control over your property. You can buy, sell, improve, spend, change investments, or give away property just as you would without a trust. The trust can be modified in any manner you desire or it can be completely revoked. Upon your death, the trust becomes irrevocable so that no one can change your testamentary wishes. Upon your incapacity, your durable power of attorney comes into effect. For married couples, the surviving spouse still has total control over his or her share of property after it’s transfer to the survivor’s trust, and the trust becomes irrevocable only as to the deceased spouse’s share.
Who is the trustee of my Living Trust?
While you are alive, you act as trustee. For married couples, either one or both spouses may act as trustee or co-trustees. The successor trustee is an individual that you designate to be in charge of your trust in the event of disability or upon death.
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