WILLS AND TRUSTS 101—Part 1 Of 2

Written by Scott Feig, Esq.

Very often we hear these terms used together—Wills and Trusts. However, they are not the same thing and, in many instances, serve different functions. It’s likely that many of us have seen those infamous scenes on T.V. programs, or movies, where the lawyer reads the Last Will and Testament of the deceased uncle to the surviving members of the family—each member on the edge of his/her seat wondering whether they were left the uncle’s millions. And, as for a trust, it’s likely that many of us think of wealthy adult children receiving money from a trust—often called trust babies. But, both of these images limit really how important it is for the every-day person to have some type of will or trust in place.

It is likely that you may be reading this because you, like so many of us, know that having some type of document directing how our assets are to be given away at death, as well as who will take care of our children at our death, is crucial. And, knowing we have these documents in place helps us sleep better at night. To this end, this week, which is Part 1 of 2, we will start with understanding will basics.

What’s probably the most important issue for many of us is that a well-drafted will tells our survivors who will be the guardian of our children. For example, if a single person with children dies without a will, his/her survivors must file papers with the court to determine who will be the guardian of the surviving children. This can be a long and expensive process and may not necessarily carry out the deceased person’s unwritten wishes. A well-drafted will is analogous to the adage—an ounce of prevention is worth a pound of cure.

Please note that it cannot be stressed enough how important it is to seek guidance from an attorney regarding will formation. In fact, a well-drafted will distributes our property to the survivors we choose—like making sure your ‘69 Camaro goes to your brother, your coin collection goes to your son, and your ‘75 Thurman Munson baseball card goes to your best friend from childhood. However, without a will, it is unlikely that the ‘gifts’ will be made. In fact, in California, if you die without a will, then State law, not you, chooses how all of your property will be given away at your death. For example, if a married person, with no children, but surviving parents, dies without a will, then half of his/her property will go to his surviving wife, and the other half will go to his surviving parents. That’s it. So the car he wanted to give to his brother, and the baseball card collection he wanted to give to his best friend, may never happen.

So, why an attorney? And not a pre-printed form from a stationary store or an online form from a website that advertises wills? Like all areas of law, there are many concerns involving technicalities being carried out correctly so the will is valid when a person dies. An invalid will is the same as dying without a will. And, at times, portions of a will may be invalid without the proper legal guidance. For example, let’s look at a common scenario: A person has a valid will drafted where, among other things, leaves his expensive coin collection to his oldest brother. A few years later, he and his oldest brother have a falling out. So, this person takes a pen and crosses out his oldest brother’s name in his will and writes in his youngest brother’s name—believing that he cancelled the ‘gift’ to his oldest brother and made a ‘gift’ of this coin collection to his youngest brother. Are you ready for this? Neither the oldest brother nor the youngest brother gets the coin collection via the will. The law regarding crossing out on a will is complicated. And, often, when a person takes his/her own pen to a drafted will, problems arise. Thus, attorney guidance regarding will drafting, and even changes to the will, is highly recommended. In case you are curious, the coin collection would be distributed as if the person died without a will. So, if the man is survived by parents only, then the entire coin collection will go to his parents. This is quite a dilemma now for the parents if they have to choose to whom the coin collection should be given.

Please note that the above information was kept in simplest form to help give you a primer of a situation that is important to many people’s piece of mind. As many areas of law, the complexity is understood and handled well by an attorney. Thus, it’s helpful to know that an experienced attorney is a phone call, or email, away to help provide guidance.

All too often people put off thinking about or starting to draft a will or a trust with an attorney because they cannot bear thinking about their own mortality.

Writing a will can be one of the greatest gifts you give to your family and/or friends. By doing so, you choose who gets your assets and you can direct the ownership of those assets to the place where it will do the most good. A well-prepared will also help to alleviate stress and family strife.

What happens if you have assets that you want specific people to inherit when you die, but you die without first writing a valid will?

The decision of who inherits your property can either be made by you, or can be decided by the State of California.

In California your property will be distributed according to California’s intestacy laws. If you die leaving a husband or wife, a certain portion of your property will go to them since most probably it is community property and your spouse is entitled to at least half if not all of the community property upon your death.

In addition, your spouse is also entitled to an additional share of your separate property depending on:

• If you die without any living siblings or parents – receive all of your separate property
• If you die with at least one sibling and/or parent – receive half of your separate property
• If you die with more than one living child – receive one-third of your separate property

What about your children? The property that your children receive will depend on how much your spouse received. California law says that your children will receive everything that was not received by your spouse. However, if you die without a spouse, your children receive everything.

Dividing your assets and property after your death can be a complex process, but it doesn’t have to be. Planning for your family ahead of time can avoid these complicated rules and stressful times. You deserve the peace of mind and comfort that an enforceable estate plan can bring.

If you need legal assistance creating a valid will, we invite you to contact the family law offices of Holstrom, Block & Parke to discuss your legal options. The consultation is free, and confidential, speak to one of our attorneys today.

Located in San Bernardino, Riverside and Orange Counties, our law firm focuses on matters relating to estate planning and probate administration.