There are many important questions you should discuss with your estate planning attorney depending on your situation, the value of your estate and the nature of your family and beneficiaries. However, your answers to these ten questions will provide you with a good start to your personal estate planning.


1. What is Estate Planning?

Estate planning is the process of deciding who will get your property and how you would like it transferred after your death. It can also involve designating a guardian for young children or a representative to make financial and medical decisions for you if you become incapacitated.


2. Who should have an Estate Plan?

Anyone over the age of 18 can benefit from having a comprehensive estate plan, regardless of the size of their estate. This is especially true for parents with minor-age children, individuals who want to control the disposition of their assets upon their death and individuals who want to avoid the court system regarding healthcare and financial decisions if they become incapacitated. A well-written estate plan can contain a power of attorney, which is a legal document that grants someone of your choosing the power to act in your stead regarding medical care and finances. Similarly, health care directives are legally-binding documents that inform others of your wishes regarding medical care, and can also name a person to speak for you if you are unable to.


3. What is the difference between a Will and a living trust?

A Will is a legal document that becomes effective upon your death and details how you want your property distributed. All property left in a Will must go through probate court. A living trust, on the other hand, is in effect while you’re still living; you transfer property into the trust, yet you still have control of the trust and can make changes or additions. Property distributed via a living trust is generally not subject to probate.


4. What is a Revocable Living Trust?

A revocable living trust is a trust set up by an individual during his or her lifetime that can be completely changed or canceled (revoked) at any time. A living trust can provide for management of assets both during one's life and after death. It can provide for continuity of management of the trust assets and is more advantageous than powers of attorney or conservatorship. It can provide for distribution of the trust assets on death or retain the assets for management for a period of time after death. It may also be used to save estate taxes in a manner similar to a will. Also, a living trust may provide confidentiality and privacy from disclosure to the public.


5. What happens if I die without a Will or a Trust? 

If you die without a Will or trust, your assets will pass to the remaining joint owner(s) or to your designated beneficiaries. If an asset does not have a joint owner or a beneficiary, the asset will be subject to probate. California law provides that if you probate assets without a Will, your assets will be transferred to your closest family members or other relatives.


6. If I have a living trust, do I still need a Will?

Even if there is a living trust, it is always a good idea to have at least a simple Will. Very often, by design, oversight, or lack of attention, every asset is not placed in the trust, thus necessitating probate for some assets. Also, the Will may contain other important provisions such as a choice of guardians of minor children.


7. Is it important to have an Advance Directive or Power of Attorney?

Yes, these are some of the most important documents that you can execute. The Advance Directive appoints a primary and alternate health care representative to make medical decisions for you when you cannot make them for yourself. The agent under your Power of Attorney manages your finances for you.


8. Is Probate Necessary? 

Probate is necessary for all Wills and for an estate that has been left behind without the designation of a valid Will. There are exceptions to this rule, however, and whether or not an estate will have to go through probate depends on the specific case. For example, California estates that are valued under $150,000 can skip the process, as well as property that is named in a trust. But every case is different, and your best bet when facing the possibility of probate is to speak with a experienced California probate lawyer.


9. Can I just get forms online for my estate planning? 

Yes, you can find forms online. However, they are often generic and do not provide for the specific issues that you will face when making your planning decisions.


10. How often should I review my documents? 

You should review your documents every three to five years or sooner if you have a major event in your life such as marriage, divorce, and birth of children or grandchildren.


The Law Office of Asha J. Wilbun