Simply defined, a will is the written instrument that provides for the transfer of a deceased persons estate. An estate does not have to be a massive amount of wealth or property holdings, it can be as simple as a home and bank account. Having a will, allows you the opportunity to choose your personal representative to carry out the terms of the will. Without a will, the court will appoint a representative for that task, and it might not be the person you would have chosen. An important feature to leaving a will is to name a guardian for minor children and a will is the only instrument that allows parents to do that. Without a will, the court will appoint a guardian, and it might not be the person you would have chosen.
Under California law, property left in a will must normally pass thru probate. If the estate does not include property and its value are less than $100,000, there will be no probate involved, but if the estate is worth more than $100,000, the will must go through probate.
Another instrument used to transfer property is a living trust. It is an effective instrument used to transfer property to your beneficiaries and void the costly and time consuming probate process. The trust also controls the use of the property. The living trust is so named because it is created while you are living; however; they are revocable and can be changed for any reason as long you are considered mentally competent. The trust will also determine how the trust will be governed.
After you create your trust, you can name yourself trustee to manage the property while you are living and a trustee to manage the trust after you are gone. You must also transfer all assets named in the trust to the name of the trust itself. The trust will name the beneficiaries, the trustee, how the trust will be managed and how the assets will be divided.
Upon your death, the living trust transfers property to your beneficiaries, just like a will, but the major advantage is the ability to avoid probate. A living trust is extremely flexible, and it can be used to transfer certain assets while using other means to transfer other assets.
One of the big differences between a will and a trust, is a will becomes a public document during the probate process, while a trust does not.
For will and trust information and to determine what is best to suit your needs and desires, contact Marc Duxbury at County Law Center located in Carlsbad, California telephone 760-438-5291. Marc Duxbury is a recognized expert in estate planning.