What’s the difference between a Will and an Estate Plan?

A will is a legal document that is part of the estate plan. The Estate Plan is a set of documents that explains what will happen to your assets when you pass.

What should I do with my documents when I am done? Do I need to file them with the court?

Keep your original documents in a safe place that is easy to find by your loved ones when they need them.  These are all private until you die.
The only document that should be recorded is the deed to your real property.  You might also share them electronically so your loved ones can find them on their computer or a secure internet site.
Nothing is filed with the court except your last Will after your death.
Some documents require notarization and they all have the notary form at the end.
One document, your will, must be witnessed by two disinterested witnesses.  Do not notarize your will.
The Advance Healthcare Directive can be either notarized OR witnessed- both options are available at the end of the form.
What is the difference between a will and a trust?

A WILL becomes active when we die, becomes public record, and is subject to the probate process. A TRUST is a private contract, active immediately (which helps upon incapacity), and still shares your end of life wishes, but is NOT subject to the probate court process UNLESS someone challenges it. WILLS have strict requirements (such as 2 independent witnesses, it must be an original, etc.). Trusts are more flexible and are only limited by our imagination. Trusts allow us to decide when our children are old enough to receive their inheritance rather than just assuming, as courts do, that age 18 is the right time. Married couple trusts can allow some asset protection from creditors and estate taxes after the first spouse dies. Since trusts are not supervised by a judge, you must choose a trustworthy person to be in charge when you’re gone — Now you know why they’re called “Trusts”.

Why should I create an Estate Plan?

Estate planning ensures that your personal, medical and financial affairs are in order in the event of your death or incapacity. Estate planning allows you to control your money, control your medical decisions, plan for the care of your children, keep your personal affairs private, and empower yourself and your family to be prepared for life’s uncertainties.

Will my documents need to be notarized?

Yes, many of the documents “should” be notarized where indicated. Although it’s not a legal requirement, it is necessary if the document needs to be recorded at some point (such as a deed). Additionally, financial institutions like to see notaries because they are afraid of fraud.

Can married couples create one Will that covers both people?

Technically, it may be possible, but I’ve never seen one in California. Since we don’t usually die at the same time, it makes more sense to have two separate wills, one to apply at each of our deaths. This allows the surviving spouse to update their own will at any time without needing the signature of their mate.

How will my doctor or family know who I have selected as my power of attorney for health care?

Give your doctor a copy of your Advance Healthcare Directive.  Give a copy to your agent(s), both paper version and an electronic version so they can access it from their smart phone.  Place a copy in the glove compartment of each of your vehicles in case you’re rushing to the hospital or a paramedic finds it in an accident.

Are the wills in the married trust and the married will packages the same document?

No, the wills are NOT the same at all.  The will in the married trust package only says that everything you own goes to your trust (in case you forget to put something in your trust while you are alive).  The truth is that the trust itself does not take much longer than the will to create.  What takes the most time is “funding the trust.”  That means putting everything you own inside of it.  In the mean time, the trust acts just like a will — stating who gets your assets and who is in charge if something happened to you.  You may want to start with the trust document if you are in a time crunch.  All the other documents (32) support the trust.

 

How many hours does it usually take to complete an estate plan online?

We recommend setting aside 2 hours per week for 3 weeks (for a Will plan) or 4 weeks (for a Trust plan). However, since YOU are in control of the process, you can go as quickly or slowly as you want.

What should I do if my married status changes? Do I need to re-do my documents?  
(a)  If you marry, state and federal law rewrite your estate plan for you assuming that you have forgotten to write your new spouse into the plan.  Until you update your documents following  marriage, your spouse would usually inherit 1/3 to 1/2 of your separate property and all of your community property regardless of what your documents say.  Your 401(k) plan would either give 50% or 100% to your new spouse.  Your term life insurance would become 1/2 theirs when you pay the premium the first month after marriage.  Your retirement accounts may also become commingled quickly which means they are not yours to give without spousal consent.
(b)  If you divorce, do not assume the law updates your documents sufficiently.  If your spouse from 20 years ago is still listed as the beneficiary on your life insurance and retirement accounts, that’s who will inherit them.  If you don’t want the family fighting over who gets to be in charge of your estate or who owns the assets, you must update your estate plan immediately upon filing for divorce.  Be careful not to move any assets, however, after filing for divorce because that is a misdemeanor until the divorce is finalized.  That means you can update your will and trust, but you can’t fund the trust yet.
What happens if I move out of state? 

Legally, each state honors the documents of all the other states because of the US Constitution.  However, for practical reasons, it is recommended to consult with a lawyer to update the documents to apply the law of the state of which you are a resident.  Some states (not California) have inheritance tax, for example, which can be planned around with a lawyer’s help.  These templates were only created with California laws and Federal laws in mind.

 

How often should I update my Will or Trust?

Updates should be considered anytime your life changes due to significant events such as marriage, divorce, birth or death of children or people you have named in your documents. Aside from personal changes, the law changes from time to time. I recommend becoming a “member” of this website to be kept informed of any legal changes that would effect your documents at least once a year. If nothing changes, then there is no need to update anything. These documents don’t expire.

What happens to my pets when I die?

You can name the person in charge of your pets when you die or become incapacitated. You may also want to leave a sum of money to the adoptive parent for the care of the pet. You would clarify these wishes in your will or trust.

How do these documents hold up in court if there is no lawyer involved? 

If you are concerned that your documents will “go to court”, then you should hire a lawyer.  All of the packages offered on this site are designed to keep you OUT of court.  The intention is to keep everything private and in your loved ones’ control, not the court’s.  If you have less than $150,000 and do not own real property, then these documents will not be subject to the court and the “will package” should be sufficient.  If you have more than $150,000 or own real estate, then the trust package is the way to stay out of probate court.  If you family does not get along and you are worried about someone taking things to court, then a lawyer should be consulted to add “bullet proofing” techniques like carefully drafted “no contest clauses.”