Your will is a legal document in which you give certain instructions to be carried out after your death. For example, you may direct the distribution of your assets (your money and property), and give your choice of guardians for your children. It becomes irrevocable when you die. In your will, you can name:

Your beneficiaries. You may name beneficiaries (family members, friends, spouse, domestic partner or charitable organizations, for example) to receive your assets according to the instructions in your will. You may list specific gifts, such as jewelry or a certain sum of money, to certain beneficiaries, and you should direct what should be done with all remaining assets (any assets that your will does not dispose of by specific gift).

A guardian for your minor children. You may nominate a person to be responsible for your child’s personal care if you and your spouse die before the child turns 18. You may also name a guardian—who may or may not be the same person—to be responsible for managing any assets given to the child, until he or she is 18 years old.

An executor. You may nominate a person or institution to collect and manage your assets, pay any debts, expenses and taxes that might be due, and then, with the court’s approval, distribute your assets to your beneficiaries according to the instructions in your will. Your executor serves a very important role and has significant responsibilities. It can be a time-consuming job. You should choose your executor carefully.

Keep in mind that a will is just part of the estate planning process. And whether your estate is large or small, you probably need an estate plan.

They are carried out through a court-supervised process called probate. Typically, the executor named in your will starts the probate process after your death by filing a petition in court and seeking official appointment as executor. The executor then takes charge of your assets, pays your debts and, after receiving court approval, distributes the rest of your estate to your beneficiaries.

Simpler procedures are available for transferring assets to a spouse or registered domestic partner, or for handling estates with assets under $150,000.

The probate process has advantages and disadvantages. The probate court is accustomed to resolving disputes about the distribution of assets fairly quickly through a process with defined rules. In addition, the probate court reviews the executor’s handling of each estate, which can help protect the beneficiaries’ interests.

One disadvantage, however, is that probates are public. Your estate plan and the value of your assets will become a public record. Also, because lawyer’s fees and executor’s commissions are based on a statutory fee schedule, a probate may cost more than the management and distribution of a comparable estate under a living trust. Time can be a factor as well. A probate proceeding generally takes longer than the administration of a living trust.

Helping You When a Loved One Dies Without a Will

When a loved one dies without leaving a will, he or she is said to have died intestate. When this happens, California laws governing descent and distribution will apply and any assets or inheritance will pass on the to the deceased's beneficiaries according to these laws, regardless of the deceased's wishes. At the Law Offices of Colleen S. Patterson, our probate lawyer will help guide you through the administration process when a loved one has died intestate.

Estate Administration in Probate Court

Our office has extensive experience helping guide people through this sometimes complicated process. When there is no will, it is likely that the entire estate must go through probate court. The administration of the estate will be similar to the typical probate process with one major difference, the laws of intestate succession will govern the distribution of the estate's assets. Intestate succession requires the estate administrator to identify all potential heirs, which begins with immediate family members. For example, if a person dies without a spouse, any children will inherit the estate equally, while siblings of the deceased will not receive anything. If there are no children, the deceased's siblings will inherit equally while cousins will not receive anything. The process will continue until a proper relative is found who can legally inherit the assets of the estate.

Benefits of Establishing a Living Trust

There are several benefits to setting up a living trust, such as:

Avoiding a conservatorship proceeding: Once you become incapacitated and no longer can manage your financial matters, then a successor trustee of your choice can manage the trust on your behalf. The successor trustee can make distributions to you or for your benefit.

Avoiding probate: If you transfer all the proper assets to the trust, it could result in a significant savings to your heirs and may avoid probate.

Significant tax savings: With our assistance, we can help you properly set up a trust that may keep you from paying a substantial amount of estate taxes.

Estate planning is a process. It involves people—your family, other individuals and, in many cases, charitable organizations of your choice. It also involves your assets (your property) and the various forms of ownership and title that those assets may take. And it addresses your future needs in case you ever become unable to care for yourself.

Through estate planning, you can determine:

How and by whom your assets will be managed for your benefit during your lifetime if you ever become unable to manage them yourself..

When and under what circumstances it makes sense to distribute your assets during your lifetime.

How and to whom your assets will be distributed after your death.

How and by whom your personal care will be managed and how health care decisions will be made during your lifetime if you become unable to care for yourself.

Many people mistakenly think that estate planning only involves the writing of a will. Estate planning, however, can also involve financial, tax, medical and business planning. A will is part of the planning process, but you will need other documents as well to fully address your estate planning needs.

You do—whether your estate is large or small. Either way, you should designate someone to manage your assets and make health care and personal care decisions for you if you ever become unable to do so for yourself.

What Is Involved In Estate Planning

There are many issues to consider in creating an estate plan. First of all, ask yourself the following questions:

What are my assets and what is their approximate value?

Whom do I want to receive those assets—and when?

Who should manage those assets if I cannot—either during my lifetime or after my death?

Who should be responsible for taking care of my minor children if I become unable to care for them myself?

Who should make decisions on my behalf concerning my care and welfare if I become unable to care for myself?

What do I want done with my remains after I die and where would I want them buried, scattered or otherwise laid to rest?

These questions and more can be answered by our Colleen S. Patterson, Attorney at Law. Contact Us today for more information and to schedule an appointment.