Orange County Probate and Estate Planning Blog

A Deeper Look into Probate, Last Wills and Revocable Living Trusts

Posted by Mary G. Finlay | Dec 01, 2016 | 0 Comments

In a previous article, I shared a few stories about some eccentric persons' last wills. Although the wills provided some entertainment value, most likely, none of you garnered a lot of useful information from reading them. I merely reinforced the notion that you should plan for your death. No news flash there.

Unfortunately, as an estate planning attorney, I deal with taboo subjects like death and boring subjects like taxes. As a result, talking about my practice will land me on the fast track to being shunned at neighborhood parties. However, I do feel passionate about educating my friends about the importance of having an estate plan in place. So bear with me while I discuss some reasons why you should use a trust to dispose of your assets instead of just a will.

Many movies (think Body Heat) and books (The Testament) depict images of family members gathered around a dark paneled, richly appointed lawyer's office for the reading of the last will and testament. In modern times, this just doesn't happen. If your relative dies and the person's will must be probated, you will likely receive a copy of the will via mail attached to a highly impersonal form pleading from the local court. (I guess the good news is that if you were written out, you will be spared some public humiliation).

Why No Pomp and Circumstance?

High illiteracy rates account for why the formal reading of the will was common in previous times. In addition, copying a will, much less transmitting a copy electronically, was not possible. Thus, the need for the reading of the will in a formal setting has been largely eradicated through modern technology. Moreover, for the reasons discussed below, trusts have displaced wills as the preferred document to dispose of assets.

Advantages of Using a Revocable Living Trust

If the gross value of your property exceeds $150,000.00 and die in California with a will (or without any planning), your estate will likely have to go through probate. Probate is the process by which the state of California determines where your property should pass either pursuant to the terms of your will, or if you die without a will, pursuant to the laws of intestacy. Simply put, probate is time-consuming, open to the public, and expensive.

How Do You Avoid Probate?

Most persons who want to avoid probate do so by utilizing a revocable living trust. Basically, you transfer your assets into the trust so that when you die there is nothing in your name for the state of California to probate. Your successor trustees then take over and distribute your property to your beneficiaries as set forth in your trust.

You still will likely execute a will just in case property is left out of the trust inadvertently. Under your will, the omitted property will pour over into the trust on your death and be distributed pursuant to the terms of your trust. Also, if you have minor children, you will name guardians in your will.

By use of a trust, more assets will go to your heirs instead of a lawyer. Most of you prefer that result.

In addition, for those of you who prefer colorful exits like the folks described in last month's article, you can still put those kooky bequests in your trust. Because a trust is a private document, however, if you want to be cremated and buried in a potato chip can, no one but you and your beneficiaries have to know. (Yes, the inventor of the Pringles can directed his executor in his will to bury him in his beloved invention.)

Whether you want to be buried in Pringles can (or not), contact the attorneys at Finlay Law Group, APC to learn more about how planning ahead is a wonderful gift you can leave for your loved ones.

About the Author

Mary G. Finlay

Orange County Estate Planning Lawyer When I was in law school, all my friends and family were so supportive and proud of me. Once I graduated from law school and passed the bar, however, I suddenly became a member of one of the most loathed professions in the world. Everyone clamored to tell me ...


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