email info@mayoandmayolaw.com

phone Free Consultation: 415-397-3713

415-397-1515
114 Sansome St #280, San Francisco, CA 94104
114 Sansome Street, Suite 280
San Francisco, CA 94104

California Estate Planning Attorneys

Estate Planning Attorney Mary Mayo ImgEstate Tax Attorney Terry Mayo

One of our California lawyers can prepare a Living Trust so that you can avoid probate and so that California intestate law does not determine who inherits your estate. You may decide that you need only a simple Will instead of a Trust with pour-over Will. Whatever you decide, you are in control of how your estate will be distributed. Our San Francisco estate attorney can also make any amendments to your estate plan including changing a Will or changing a Trust.

1. What is a Living Trust

2. What is a Will

3. Estate Taxes

4. Items Needed to Prepare Your Estate Plan

1. What is a Living Trust?

A Living Trust is also called a Family Trust, a Revocable Trust or a Revocable Living Trust – these are all different names for the same trust law document. One of the main differences between a simple Will and a Living Trust is that your estate is able to avoid probate with a Trust that is properly funded whereas with a simple Will any estate valued over $150,000 must be filed with the probate court. Estates with a gross value under $150,000 may be transferred by Affidavit with Probate Code 13101; the Affidavit can be found at the San Francisco Probate Court http://www.sfsuperiorcourt.org/forms-filing/forms/will-decedents-estate-forms.

Your time is valuable so it is up to you whether we meet by phone or in-person to obtain the information needed to draft your estate plan. After you review and approve your estate planning documents, we will have the final documents ready for you to sign when you come to our office including your Trust, a pour over Will, health care directive, power of attorney and deeds and related documents for recording your deed. During your lifetime you are the trustee in control of the assets in your Trust. Once you pass away, your Trust becomes an irrevocable trust and cannot be changed. Any power of attorney you have given to another is no longer legally effective. The successor trustee you have appointed will then assume the sole power to administer your trust estate (or you can name two individuals to serve as co-trustees).

You may ask who is a trustee in a trust and what is a trustee for. When you have your own Trust prepared, you are both the Settlor (also called a Trustor) and the initial trustee. If you are married, both your spouse and you are Settlors and trustees and in control of the trust estate or trust estates. When the last of the Settlors passes away, then the Trust specifies who the successor trustee or trustees are who will then distribute the property in trust to the beneficiaries and provide a trust accounting. If you would prefer that your Trust be distributed over time or with certain conditions, the Trust language can incorporate these testamentary provisions. Our trust attorney assists many successor trustees with legal advice, statutory notices, accounting and distribution and sale of trust assets.

The advantage of preparing a Living Trust with a pour-over Will (the pour-over Will associated with the Trust specifies that all of the assets pour over into the Trust at the time of your death) instead of a simple Will without a Trust is that there is no need for a probate provided that the estate property has been properly funded into the Trust. Retirement accounts are not funded into the Trust. It is important to know how to fund a Trust properly. However, if all of the assets such as real estate were not titled as Trust assets as of the date of death, our estate attorneys can file a Heggstad petition to request that the probate court include those omitted assets as trust property as though they had been in your Trust prior to your death.

If you are a successor Trustee or a beneficiary of a decedent's Trust, we can also answer your questions on Trust Administration or Trust Litigation. 415-397-3713.

2. What is a Will?

If you decide that you would like a simple Will and not a Living Trust, you will want to know how to make a Will to provide for your heirs. Making a Last Will and Testament without an estate attorney can be problematic. A holographic Will is handwritten, must be dated and signed and must be proved after your death in probate court to have actually been written by you. Form Wills pose problems as well and can be disputed by the beneficiaries based on technical issues or wording interpretation. Since our law firm has represented individuals in both probates and probate litigation for many holographic wills and form Wills, we have seen numerous will contests. A better decision is for you to have an estate planning attorney in California prepare a formal and properly witnessed Will that is self-proving. If you have minor children, creating a Last Will also enables you to choose a guardian for your children. If you want to exclude next of kin from your estate then a Will or a Trust is necessary so that the California probate code does not divide your intestate estate among all of your next of kin. Likewise, if you want to give some of your estate to charity or have need for a special needs trust, then you need to include this in your estate plan.

If you have less than $150,000 in assets, then you may need a simple Will and not a Trust.

A pour-over Will is the Will that is drafted with a Trust and the pour over Will specifies that all of the assets pour over into the Trust and the Trust has the distributive provisions whereas a simple Will specifies the gifts to the beneficiaries in the simple Will.

If you are a beneficiary or executor of a Will of someone who has died with either a holographic Will or a typed and witnessed Will, please contact us to determine how to probate Will, what probate is and if the estate can be distributed as a small estate without probate. We can also assist and tell you everything you need to know about probate of a Will, the timing and the steps from start to finish. Our probate attorney in San Francisco can also explain why probate is required and an explanation on how do I probate a Will. 415-397-3713

3. Estate Taxes

California estate tax and inheritance tax information can be found at http://www.sco.ca.gov/ardtax_taxinfo_estate.html. Whether your estate is subject to estate taxes depends on when the decedent died and the value of the estate. If, however, the estate is valued at over $1,000,000 and any of the beneficiaries reside outside of California, the estate attorney must apply to the California Franchise Tax Board for the required tax clearance letter during the probate or trust administration.

Federal requirements for inheritance taxes are more complicated than can be covered here; the IRS website has good information http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Estate-and-Gift-Taxes and the estate lawyers will work with an accountant for the estate to ensure that all federal and state filing requirements have been met. 415-397-3713

4. Information Needed to Prepare Your Estate Plan

The estate planning process generally takes one hour or less of your time. Most of the information that our Wills and Trusts Estate Planning Attorney will need to prepare a Will and/or Pour-Over Will and Trust can be obtained by phone or email and includes:

  • Name(s) as it appears on your drivers license and your marital status
  • Name of the guardian, executor, the trustee of a trust or the trustees
  • Names of your children and other beneficiaries – anyone or entity to whom you want to leave your estate and the percentage testamentary gift to each
  • Information on any real property and other assets that you own so that our Trust Attorney can prepare the deed to put your home in a trust

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