A Will is a document that ensures your assets are distributed to the individuals you select. This legal document will also identify who will serve as Executor to manage the process of transferring your assets to the beneficiaries. Unfortunately, a Will won’t avoid probate, but a Will can ensure that your wishes are properly carried out upon your death.
The creation of a Will is important as without one, the California Probate Code decides who will inherit your assets, which may not reflect your wishes. In addition to creating a Will, it’s just as important to make sure it receives proper validation and enforcement. Hiring a Will attorney who is experienced with probate is imperative. Kam Law Firm is here to guide you on Wills and why you should hire an attorney to draft your Will.
Trust vs. Will
Both a Trust and Will are legal documents in an estate plan that communicate how you would like your estate to be distributed upon your death. While a Trust generally takes effect immediately, a Will goes into effect upon your passing. What are other key differences?
A Trust is a contract that holds property belonging to the grantor (creator) and provides the rules for management of the assets during life, incapacity, and death. All assets in a Revocable Living Trust are in held in the name of the Trust, however the grantor’s social security number is used for filing taxes. Rather than hold title as “John Smith”, bank accounts and real property will hold title to the assets as “John Smith, Trustee of the Smith Family Trust”. Once the assets are transferred into the Trust, they are managed and distributed by the designated Trustee, pursuant to the trust terms. As long as the grantor has capacity, they can revoke or amend the trust.
Within a trust, you can create subtrusts for beneficiaries. While subtrusts won’t become effective (because they are not funded) until you have passed away, they are beneficial to beneficiaries who are unable to manage their inheritance responsibly,as you can set whatever limits you want within the bounds of the law. However, a good trust attorney will advise you not to “control from the grave” too much, as you cannot be certain what the beneficiaries needs will be in the future.
A Will allows you to designate who will receive your assets, who will raise your children (if they are minors), and who will administer your estate through probate. Unfortunately, a Will does have to go through probate (the legal process of transferring assets to the rightful beneficiaries) which means your loved ones may have to wait up to two years to receive their inheritance. Because a Will must go through the court probate process, it becomes part of the public record, unlike a Trust, which remains private.
Sometimes a Will is sufficient where :
- No children are involved;
- You don’t own real property;
- You have no intention of leaving gifts to minors or disabled loved ones;
- You are comfortable providing the inheritance to a beneficiary outright. This means that if you give a monetary gift, your beneficiary will inherit it all and you won’t be able to impose rules on it (whereas you can with a Trust).
Why is a Pourover Will Important?
This type of Will still names an Executor to manage probate; however, instead of naming beneficiaries to inherit your assets, a Pourover Will names the trust as the beneficiary of all assets that aren’t transferred into the trust. This document is one of the most important parts of the estate planning process as individuals with a trust often pass away assets outside of the trust. Most frequently it is the family home that is left out and it is typically due to a refinance. Although a refinance can be done while the home is in trust, inexperienced lenders get nervous about it and require the home to be transferred out of the trust. While they happily prepare this deed, they never prepare a deed transferring the home back into the trust.
Meeting with a Will attorney can ensure you have everything properly addressed.
What Does a Will Attorney Do?
A Will attorney, also known as a probate attorney, can assist you and your family with:
- Drafting the Will;
- Assisting your family to ensure your wishes are carried out;
- Aiding in any legal proceedings should the need arise.
More often than not an experienced lawyer can handle all aspects of both Wills and probate. It is important to check to ensure the lawyer you want to hire can handle both.
The Differences Between an Estate and a Will Attorney
There is no precise difference between an estate and Will attorney. There are a few slight differences in the roles they can play when it comes to serving you.
An estate attorney’s main responsibility is to write out your wishes for incapacity and death in a comprehensive estate plan (this plan consists of a compilation of several documents depending on your particular needs). They will know the right documents you need and present various options for you to successfully carry out your goals.
A Will attorney can handle the above, but they can also go to probate court on your behalf. It’s important to note that many probate attorneys do not handle litigation. If you need a San Diego probate attorney that does, make sure they have probate litigation experience as Kam Law Firm does.
7 Reasons to Hire an Attorney for Your Will
1. An Experienced Attorney Can Build a Technical and Specific Will
Hiring a Will attorney means gaining access to their years of knowledge and experience. In your meeting, the attorney will also be able to provide insight on the best way to achieve your goals, particularly if you have challenging family dynamics. They also have the technical skills necessary to ensure the correct documents are prepared.
Furthermore, meeting with a will attorney is important because they act as a neutral third-party. If someone contests the validity of your Will and trust litigation ensues, the drafting attorney will be deposed and a well-documented file will help ensure your wishes are protected.
2. The Average Cost of Making a Will With an Attorney Isn’t High
Contrary to popular belief, creating a Will can be a relatively cost-effective way to leave your assets to specific beneficiaries. While attorney fees will range depending on their experience, your location, and your family needs, this option is a viable way to write a legally sound Will. Regardless, this is not the place to skimp. A poorly prepared Will can be worse than no Will at all.
3. The Will Attorney Can Help You Update The Will
Life happens and circumstances change. Whether you’re getting divorced, getting married, or having a child, those situations are a great time to review and potentially update your Will. We even recommend you take a quick glance at your Will from time to time to avoid unintentionally creating problems for your heirs upon your passing. Working with a living Will attorney can help to make sure the right clauses and verbiage is used given your unique situation.
4. You Might Not Have Time to Learn How to Create a Will
While there are plenty of online resources for writing a Will, oftentimes, you will need to read up on all aspects of a Will before you start the online process. A good Will attorney can ask a few key questions and work with you in a timely manner to write a Will and any other necessary legal documents. You also won’t necessarily know on your own what other documents you need, or how to best draft to minimize probate litigation. Online websites that let you create your own Will have the same pitfalls.
5. The Attorney Will Avoid Common Mistakes
Oftentimes a Will can be written in a rush and without much thought. If you choose to write a Will on your own you could easily overlook state statutes required to make a Will legal. Remember, although they appear simple, the seemingly boilerplate language is necessary, valuable, and depends on your particular circumstances. Additionally, you could also accidentally name the wrong Executor, leave out assets, or fail to name a guardian for your children. A knowledgeable Will attorney knows all of the intricacies and will ensure nothing is overlooked.
6. Creating a Valid Holographic Will is Much More Challenging
Also known as a handwritten Will, holographic Wills have very specific legal requirements that differ from Wills drafted by attorneys. You would have to read the California Probate Code thoroughly to find the applicable law and may not properly interpret the law. Remember, attorneys spend three years in law school then take a bar exam that they have to study for for three months, with a 50% fail rate in California.
Individuals also don’t understand the implications of simpling crossing out a line or a gift in their Will. This may not achieve the intended result but it sure will make for a messy complicated court process. An attorney is best suited to provide advice when it comes to Wills.
7. A Good Lawyer Can Ensure Your Assets Will Be Distributed to the Right Individuals
Family dynamics can be complex. A Will attorney, particularly one with probate litigation experience, knows how to properly draft your Will so your assets are properly distributed to the right heirs, while reducing the risk of a Will contest as much as legally possible. Unfortunately, a Will contest can never be prevented, but there are strategies to reduce the risk. Instead of simply naming beneficiaries to inherit your property, a Will attorney can help to set up a more complex plan such as a trust, which provides you with the flexibility to leave assets to one individual for their benefit until death, with ultimate distribution to your children. This can be helpful to ensure elderly parents or disabled siblings are protected in addition to your children.l
When Will You Need a Will Attorney in California?
While you aren’t required to hire an attorney to prepare your Will, a Will attorney will have several years of experience drafting Wills, in addition to providing useful advice on estate planning strategies.
Wills are powerful documents that can achieve many goals; however, most individuals don’t understand the power or optimal use of a Will without the help of a Will attorney in San Diego. Creating a Will is just one part of a much larger picture. Hiring an experienced Will attorney will help you understand what a Will can and cannot do no matter what your life situation looks like.
How Do You Know if You Need a Will Attorney?
It’s a good idea to create a Will at any age because the future is unpredictable and communicating your wishes to a family member is not enough. The court needs to see it in writing in a properly validated Will or the probate code will control who inherits your assets. No matter your age or state of health, a Will will ensure your assets are distributed the way you wish. Writing a Will yourself (even through online sources) can often lead to documents that aren’t legally sound or are inaccurate. Consulting with a good living Will attorney that has a strong reputation will guarantee that your Will is valid and truly meets your needs.
Creating a Will With an Attorney in California
Meeting with a Will attorney who is experienced can save you and your loved ones time, money, and stress. In order to have a seamless meeting with an attorney, we recommend that you bring the following:
- Organized information in relation to assets, liabilities, and title arrangements;
- Think about feelings of family members and how that will affect family dynamics when you’re gone;
- Come prepared with a general idea about your wishes;
- Bring documents including any previous Wills or trusts, powers of attorneys, life insurance policies, employment benefits, etc.
Most Will attorneys will either have a questionnaire or conversation to guarantee all items are addressed and you feel comfortable before creating your Will. If you’d like to set up a free consultation, contact a Will attorney in San Diego now.
Wills, probate law, and situations surrounding Wills can be complicated. Kam Law Firm’s attorneys are here to take all the right measures to minimize the risk of having your Will invalidated. Call us today at 619-535-1405 for questions about Wills or to set up a free consultation with one of our Will attorneys in San Diego.