Jennifer M. Medeiros
Attorney At Law
14390 Park Avenue
Victorville, CA 92392
December 12, 2017
Joe or Jane Client
123 Anywhere St.
City, California 90000
RE: Estate Planning General Information and Guidelines
This letter will answer common questions about estate planning. Part One will help you
understand what each document does as well as help explain which documents you need
considering your individual situation. Based on your assets and wishes we will develop a
complete estate planning portfolio that is customized to your family and your assets. Part Two
will serve as a guide to keep your estate planning documents current for the rest of your life. If
changes occur in your family, your wealth, or your wishes this will help you keep your
Everyone over the age of 18 who has anything they consider valuable should consider some type
of estate plan. Typically older adults who are educated and have a net worth establish estate
plans. (Goettig and Martin, 259) However disease and accidents strike people of all ages. A 20
year old young man who just bought his first home can be killed in a motorcycle accident. A 25
year old single mother with two children and a bank account can die of breast cancer. We will
all die someday. It is best to prepare and plan for this certain occurrence when we are in good
health to be assured our assets are passed on to the people we wish.
Do you need a will or a trust?
If you own real property such as a home, condo, vacant land, or a timeshare you need a trust. If
your assets are limited to your furniture, jewelry, car, and bank accounts then a will is sufficient
to distribute your assets to the person you intend, called your beneficiary. The reason is that
personal property can be transferred easily. No title documents exist with furniture, clothing, or
jewelry. To transfer your car to someone when you die you can name a “Transfer on Death”
beneficiary on your pink slip through the Department of Motor Vehicles. Bank accounts can be
transferred by designating a beneficiary on your account with your bank. Real estate, however,
does not come with a beneficiary card. The only way to transfer a piece of real estate after the
owner dies is in a trust or with a court order. This court order is called probate.
What is probate?
Probate is the legal process in which a court of law orders that assets owned by a deceased
person, called a decedent, be transferred to the decedent’s beneficiaries indicated in his or her
will. Probate also includes intestate succession in which a person dies without a valid will and
their assets are passed on to their heirs as defined in the probate code of the state in which they
reside at the time of their death. In California, for example, the laws of intestate succession in
Probate Code 6401(a) (California Probate Code 593) have the following effects on these various
A decedent dies leaving a spouse only- 100% goes to the spouse
A decedent dies leaving no spouse but three children - 33.3% to each child
A decedent dies leaving no spouse but three children he raised plus one child he has
never met - 25% to each child
A decedent dies leaving no kids, a spouse they have lived separate from for five years,
and a live-in companion of five years - 100% to the spouse, 0% to the companion
A decedent has no spouse, a step child he raised and also has a biological child he has
never met - 100% to biological child, 0% to step child
If a decedent dies leaving a spouse and children and some of the assets are classified as separate
property because they were acquired by the decedent before marriage, or as a result of an
inheritance they are divided by California Probate Code 6401 (c) (California Probate Code 593)
If decedent only has one child, 50% to spouse and 50% to child
If decedent has more than one child, 33.3% to spouse and 66.6% divided among children
A decedent dies leaving no kids, a spouse, and a brother he has not spoken to in 20 years50% to the spouse and 50% to the estranged brother
As you can see, intestate succession may not always allow the decedent’s assets to pass to the
people the decedent may have intended. This is why it is so important for every person over the
age of 18 to create a will. A will ensures that the decedent’s wishes are followed. In the will
the decedent names the person they trust to disburse the property to their beneficiaries, called the
executor (male) or executrix (female). Personal property such as furnishings, cars, and personal
effects, can be transferred to the beneficiary easily. Real estate can be transferred to the
intended beneficiary but only under the supervision of a judge by a court order.
Why do people want to avoid probate?
Probate is expensive and time consuming. Court costs are approximately $982.00 according to
the Superior Court of California, County of San Bernardino Civil Fee Schedule. (Superior Court
California County of San Bernardino.) Other costs required include appraisal fees, publication
fees, and recording fees. For a typical probated estate of $300,000, these fees total an additional
$1,000.00. Executor fees for a typical estate of $300,000.00 are another $9,000.00 and attorney
fees add another $9,000.00. This totals $19,982.00 in costs and fees for an average size estate.
Estates valued at more than $300,000 will cost more as it is based on a valuation of the assets.
If your home is worth $300,000 but you owe $250,000 on it, the court does not consider that it
has only $50,000 equity. Values are based on the current market value of $300,000. The
second reason people want to avoid probate is because of time. It takes a minimum of eight
months to complete a probate in the Superior Court of California, County of San Bernardino.
With complications, the probate process can last several years. If a home needs to be sold
during probate that will extend the time.
How do I avoid probate?
Allow me or another licensed attorney to draft a trust for you. A trust will give all of the
necessary powers to your appointed agent, called your trustee, allowing him or her to gather your
assets, pay your final bills, expenses of last illness, and final personal and estate taxes, if any.
Finally, your trustee will have the power to transfer your assets to the person(s) you designate in
your trust without the need for a court order. The most common type of trust is a two-settlor
revocable trust. This is a trust that is created by a husband and wife and can be amended,
changed, or cancelled at any time until their death. There are many types of trust and your
attorney can advise you on the most appropriate document to carry out your wishes. The twosettlor revocable trust will be discussed here.
Do I still need a will if I have a trust?
You will need a pour-over will if you have a trust. A pour-over will states that all of your
assets, whether property titled in your trust or not, will pass through your trust and will be
distributed by your trustee according to your trust’s terms. This covers you in case you acquire
more assets in the future that you forget to title in your trust name.
What should my trust include?
Your trust should include all of your assets with a few exceptions. If you have an IRA or a life
insurance policy you should leave those outside of the trust and name a beneficiary directly with
the company issuing the account or policy. Also, you may decide to leave a particular checking,
savings or investment account outside of trust if you have a properly designated co-owner or
beneficiary. The goal is to have your financial institutions know exactly who will receive your
account when you die. If you do not name your trust or a beneficiary to each account the bank
will freeze your account on your death and will require a court order. This means that a probate
is required for that asset even if you have a trust in place.
Real estate should always be placed in your trust. Real estate includes your home, any rental
properties you own, commercial properties, vacant land, and timeshares. Real property you own
located out of the state of California should also be placed in your California trust. A grant
deed, quit claim deed, or trust transfer deed are instruments which properly place your real estate
in trust. This deed should be prepared, signed by the property owner and recorded with the
Recorder in the county is which the real property is located. Even if you do not own your real
estate outright, meaning you owe money to a bank or private lender on a deed of trust or
mortgage, you are considered the legal owner and should execute a deed to transfer your real
property to your trust.
Personal property which includes furniture, clothing, jewelry, personal effects, vehicles, artwork,
collections, guns, etc. should also be trust assets.
Can I be in charge of my trust?
Yes. Although you are the person who created the trust, called the settlor, you can also manage
your trust, as trustee, as long as you have the legal capacity to do so. Unless an illness or
accident occurs most people continue to be the trustee of their own trust until they die. At the
time they die their spouse, if any, may continue to be the sole surviving trustee. When the
surviving spouse dies a successor trustee, previously appointed by you now has the power to act.
You may name several individuals to act in order of succession or as co-trustees. Your trustee
has a fiduciary obligation to manage the assets of the trust, use your assets to provide for you
during your lifetime if you are incapacitated, and collect your assets at your time of death. Your
trustee then has the responsibility to pay the expenses of your last illness, your outstanding bills,
file and pay your taxes, and finally distribute any remaining assets to your beneficiaries
according to the terms of your trust. Your trustee can be your adult child, parent, friend,
neighbor, or any other person even if they are one of your beneficiaries. If you do not have a
person you trust to act as your trustee you may hire a bank or a person who is licensed and
bonded as a professional fiduciary.
I have a special situation. Can you create a customized plan to meet my needs?
Of course we can. If your needs go beyond a typical revocable trust we can customize estate
planning documents for your family. Some common specialized issues include:
You may have a child with special needs who receives state aid. An inheritance through
a trust would cut off those benefits. A special needs trust can protect you.
You may want to leave your assets to a charity instead of a child or family member. A
charitable trust can achieve your goals.
You may have considerable assets and need to reduce your tax liability. A tax savings
trust can protect more of your assets. According to the American Taxpayer Relief Act of
2012, $5 million can be passed to beneficiaries tax free with inflation increases each year.
(American Taxpayer Relief Act, 2012) Currently in 2014, the amount that can be passed
on without estate tax is $5.34 million dollars. Your estate only pays tax for the portion
of assets that exceed $5.34 million dollars. With proper trust planning, a married couple
with a tax savings trust can double their estate tax exemption to $10.68 million dollars.
Can same sex couples benefit from an estate plan?
Non-traditional families especially need an estate plan (Godfrey, 85) Each state creates laws
called statutes which govern inheritance laws. The State of California currently recognizes
same sex marriages however the federal Defense of Marriage Act (Defense of Marriage Act,
1995-1996) has made benefit eligibility for same-sex spouses uncertain in the past. (Godfrey, 81)
This controversial issue was before the Supreme Court in 2013 when the court declined to
defend the constitutionality of the California same sex marriage ban known as Proposition 8
thereby allowing gay marriage to continue. (Sacks, Reilly and Siddiqui 1) Because these issues
are so new in California and are still unsettled in other states, it is most important for gay and
lesbian couples to put their wishes in writing in the form of a will or trust. By doing so their
wishes cannot be changed by laws in place at the time they die.
Do I need any other documents to complete my estate plan?
A thorough estate plan also includes a Durable Power of Attorney for Financial Affairs and an
Advance Health Care Directive. Your will and trust are controlling documents effective
immediately on your death. If you become physically or mentally incapacitated during your
lifetime but have not yet died, you will need these powers of attorney in place. This occurs
most often in elderly people diagnosed with dementia or stroke, or younger people in an
accident. If you are in this situation and you don’t have these powers of attorney already in
place it is necessary for someone to obtain a conservatorship over you. Conservatorship is a
court order in which a judge appoints a person to oversee your finances and take care of you
physically. You may not choose the conservator and the court may not consider your wishes if
you are mentally incapacitated. You should draft these documents now while you are healthy
A Durable Power of Attorney is a document that allows you to nominate a person you trust as
your agent. Your agent is called your attorney in fact, although they do not have to be an
attorney at law. Your agent will handle your financial affairs during your lifetime if you cannot
handle them on your own. This includes paying your bills, investing your money, filing your
taxes, and selling your assets, among other things. Your agent can be your spouse, adult child,
parent, sibling, friend, etc. A durable power of attorney expires at your death when your will
and trust become effective.
An Advance Health Care Directive is a power of attorney for health care. You nominate a
person you trust to make health care decisions for you at the time that you can no longer
communicate them to medical personnel on your own. This document will also allow you to set
forth your wishes to donate anatomical parts, be buried or cremated, have an autopsy, and be
given life support.
I’d like to save money. Can I prepare these documents myself? Can I use an online
document or hire a paralegal to prepare my estate planning documents?
You can prepare your own estate planning documents or have a paralegal prepare them but
unless you are a lawyer trained in estate planning you might not produce a valid document.
Online documents are formats that require you to insert information. The final product is only
as good as the information you provide. A computer program cannot direct you on what
documents you need or how to complete them. Only a lawyer licensed to practice law with the
State Bar of California can legally do that. The probate code is a set of state laws which outline
what content must be included in your documents and how they should be signed. For example,
your will must be witnessed by two disinterested persons and not notarized. Your trust should
be notarized and not witnessed. If you don’t meet the legal requirements when you draft the
documents they will not be valid when you’re deceased. By then it’s too late to make
You have no assurance with online companies or paralegals as they are not required to be
licensed or insured. A licensed California attorney is required to have errors and omissions
insurance. Therefore even if your attorney commits a serious error in the documents your
family is protected. Your attorney is also subject to disciplinary action by the State Bar of
California if they commit negligence or malpractice.
After I create an estate plan how do I keep it up to date?
You should review your estate planning documents with your attorney every two to three years
or when your marital status changes or you have a birth or death in your family.
What happens to my trust if my spouse and I divorce?
If you divorce your spouse you should revoke your family trust and establish new estate planning
documents to reflect the division in property or your wishes for someone other than your former
spouse to make financial and medical decisions in the event of your incapacity. You will also
want to make changes to joint bank accounts and remove your spouse as beneficiary on your
pension or life insurance policy.
What happens to my trust if my spouse dies?
When your spouse dies, your trust will still continue until after your death. If your spouse dies
you will need to prepare some required state notices and record their death certificate and
Affidavit of Death on each piece of real property. This process is called trust administration.
You, as the sole trustee, have the power to prepare and record these documents yourself but
many people, especially when they are distraught at the death of a spouse, hire a lawyer to
handle the trust administration.
What happens if the person I appoint as my trustee dies?
You can nominate a successor trustee in your trust to handle the administration in the event your
first named trustee dies, is incapacitated or is otherwise unable or unwilling to act. Several
successor trustees can be named to act in the order you direct in case one or more are
What happens if my beneficiary dies?
You can nominate alternate beneficiaries in your trust in the event your first named beneficiary
dies before you. You can also change that gift to go to a different beneficiary since your estate
planning documents will remain revocable until you die.
What if my assets change?
Your assets are listed on a document titled Schedule of Trust Assets. If you no longer have an
asset in your possession you can simply put a line through it on your schedule. When adding
additional assets you can handwrite them on your schedule but you must make sure proper titling
documents such as a deed for real property or a bank beneficiary card for a cash account is in
If I change my mind about a provision in my trust can I cross it out and change it?
The freedom you have to cross out and add on assets to your schedule of trust assets does not
carry over to your will and trust. Writing on or crossing out language on your will or trust
invalidates the document. A formal amendment, drafted by an experienced attorney, is needed.
When is a formal amendment necessary?
A formal amendment will be required if you wish to change who you nominate as your trustee.
It is also required to make any changes to your beneficiary designations. A formal amendment
is also recommended when you get married or have a child.
In summary, now is the time to put your affairs in order to protect your assets and your family.
Wills, trusts, and powers of attorney are necessary for you to decide who receives your cash and
property. If you don’t have these important documents in place the court will act for you.
I hope this guide has made the estate planning process more clear. If you have additional
questions please contact my office to set an appointment for a free initial consultation.
JENNIFER M. MEDEIROS
California Probate Code Annotated. 2014. Section 6401. Surviving Spouse or surviving domestic
partner; intestate share; community or quasi-community property; separate property. California:
Thomson Reuters, 2014. Print.
Godfrey, D. “Three Legs on the Ground: Retirement Income Essentials for LGBT Adults.”
Generations-Journal of the American Society on Aging, 36.2 (2012): 81-87.
Goettig, Marsha, and Peter Martin. “Characteristics of Older Adults with Written Wills.” Journal
of Family and Economic Issues, 22.3 (2001): 243-264.
“Probate Fees.” Superior Court of California, County of San Bernardino Civ ...
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