An estate plan is a collection of documents that provide instructions regarding your care if you are ever incapacitated and the distribution of your assets upon death. An estate plan allows you to provide for your surviving spouse, children, and aging parents; it allows you to choose one or multiple individuals you trust to make your healthcare and financial decisions and; it can be used to reduce estate taxes.
A thorough estate plan includes a trust, will, health care power of attorney, and financial power of attorney. Both a will and trust can communicate how you would like your estate to be distributed. However, there are several distinctions.
A will allows you to decide who gets your assets, who you want to raise your minor children, and to specify funeral arrangements. However, a will must go through probate, the legal process for transferring assets to those designated as beneficiaries in your will. Unfortunately, the severe court budget cuts have made the San Diego probate process quite lengthy, with only two judges currently managing 15,000 active cases each. This means your family members may have to wait anywhere from six months to two years to receive their inheritance.
A trust is a legal contract for holding or transferring property. The assets in a Revocable Living Trust are held in the name of the trust but the creator’s social security number is used for filing taxes and the creator can terminate the trust at any time. Once transferred to the name of the trust, the assets are managed and distributed by a Trustee. The trustee of a Revocable Living Trust is typically the creator of the trust, also known as the grantor. If the grantor is incapacitated or passes away, the successor trustee (or co-trustees) take over management of the assets. If the incapacity is temporary, as soon as you, the grantor have capacity, you can be reinstated as sole trustee. During your meeting with a San Diego estate planning attorney, the attorney will help you understand the responsibilities involved with managing your trust so that you can appoint someone qualified and trustworthy to act as your successor trustee.
At death, the assets are managed and distributed by the successor Trustee according to the trust terms set out by you. Within your trust, your San Diego trust attorney can also create subtrusts for your beneficiaries, however the subtrusts do not come into existence until you have passed away. In many cases, subtrusts are preferable to outright distributions because outright distributions are subject to your beneficiaries’ creditors. Subtrusts can be particularly valuable when beneficiaries inherit at a young age. Young beneficiaries may lack the ability to spend their assets responsibly. With subtrusts, you have the ability to appoint anyone you want to act as Trustee to manage these assets, including allowing the beneficiaries to become Trustee or co-Trustee of their own trust at a designated age. One of the great values of these subtrusts is that you can be very specific as to how you want the money to be spent and when it can be distributed, for example the trust may pay for college, a first house, or it may give lump sum distributions at specified ages. Essentially, the trust can give distributions according to your wishes, within reason.
Contact our office today to schedule a free consultation with a San Diego trust attorney and learn more about how your estate plan can be customized to protect your family.