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Creating a trust is an excellent way to pass on the estate to the beneficiaries. However, the part where individuals face problems is nominating a trustee. Questions like who can be the trustee, whether a trustee can also be a beneficiary, etc., always ring the bell in the mind.

Don’t worry! Leave all your worries to us, and we’ll answer all your questions.

Below, we’ll explain the difference between a trustee and a beneficiary and whether one person can be both. We’ll also offer tips on selecting the right person to manage the trust as a trustee.

What Is A Trustee & A Beneficiary? 

A trustee is one of the most important parts of a legal trust arrangement. When someone creates a trust, it mainly involves three parties: the trustor, the trustee, and the beneficiaries (who can be one person or more).

The trustor creates the trust, while the beneficiaries are the individuals for whom it is created. The trustee plays a crucial role between the two parties by holding and administering the estate until the beneficiaries meet the conditions set by the trustor.

These conditions can vary based on the purpose of the trust. For example, if the trust is created for the well-being of an incapacitated person, the assets will only be used for that purpose, and the trustee will ensure that the terms are followed.

Can A Trustee Also Be A Beneficiary?

Yes, a trustee can also be a beneficiary; there are no legal restrictions prohibiting someone from fulfilling both roles. Just remember, it’s impossible if only one beneficiary and one trustee are involved in the trust.

In other words, a sole beneficiary cannot act as the trustee. However, If there are multiple beneficiaries and trustees, you can nominate a beneficiary from your trust to serve as a trustee alongside others.

Potential Conflicts For Nominating Beneficiary As A Trustee

Although nominating a beneficiary as a trustee is possible, legal experts don’t suggest it because of potential conflicts. The beneficiary as a trustee arrangement is suitable only when you’re sure no other beneficiary will object to this decision in the future.

When other beneficiaries know that one is a trustee, it can often lead to disputes. It’s because they might think you don’t trust them to bear this responsibility.

Furthermore, trustees can misuse their power to create conflicts. For example, a trustee who’s also a beneficiary might make decisions that benefit their interests. Whatever the cause, this decision can lead to long legal battles. This is why it’s best to avoid it!

Can A Beneficiary Be A Trustee of An Irrevocable Trust?

An irrevocable trust is a type of trust that cannot be revoked once it’s created. Once the trustor sets up the trust with all the conditions they want, the assets in the trust are no longer the trustor’s property.

Since it is not the trustor’s property, it can’t be changed. Yet, despite these strict rules, a beneficiary can be a trustee of an irrevocable trust. The only requirement is that there must be more than one trustee and more than one beneficiary.

Who Is The Best Person To Be A Trustee?

You can nominate any individual as trustee of your trust. It can be from your family, friends, relatives, or someone you trust – the decision is yours. However, they must meet some requirements.

For instance, the person you’re considering nominating must be an adult and mentally competent. Besides these two conditions, you should consider the points below:

  • Responsible: The best person to be a trustee is someone responsible. Remember that the trustee will be responsible for everything from estate administration to distribution. This is why choosing a person responsible enough to keep up with all the tasks is important.
  • Have good knowledge: It’s not important for a trustee to be a financial guru or legal expert, but having basic knowledge is beneficial. Otherwise, the trustee won’t be able to manage the trust’s financial and legal matters. In such cases, trustees may need professional assistance, which can be costly and time-consuming.
  • Honest person: Honesty is an essential trait for a trustee, as your trustee will manage your entire estate. They should act with integrity and transparency in all matters related to the trust.
  • Financially stable: Another important point to consider is financial stability. It’s unnecessary, but it can provide additional security to the assets. A financially stable trustee isn’t likely to mismanage the trust finances for their personal interest.

Final Thoughts

So yes, a trustee can also be the beneficiary (as long as there’s no sole beneficiary or sole trustee) of the trust, although it’s not generally advised. This decision can lead to legal battles among beneficiaries in the future.

Moreover, there’s a risk that the trustee you choose may prioritize their own interests as a beneficiary, leading to conflicts of interest. So make your decision carefully! If you need more assistance, don’t hesitate to contact our trust attorney for guidance

The impact of not leaving a Will behind for your family is a matter of concern. Leaving this one crucial step sets the stage for a distribution process dictated not by the personal wishes of the decedent but by state laws.

These laws, known as intestate laws, govern the distribution of an estate in the absence of a Will. The primary challenge of intestate laws is they open the door for all eligible family members to be considered as potential beneficiaries.

To explain the hierarchy order of the intestate law further, we’ll answer the question of what happens to your stuff if you die without a Will. The answer will clear the concept of estate distribution and also the misconceptions people typically have in mind.

What Happens If Someone Dies Without Leaving A Will?

If someone dies without leaving a Will, the distribution of the assets will be according to the intestate laws. Intestate laws serve as the legal framework for determining the succession of an estate when the deceased has not provided instructions.

Intestate laws follow a hierarchical order for selecting beneficiaries. All relatives from both immediate and extended family can be eligible to inherit. However, the priority will only be given to those closest in relation (the immediate family members).

The extended family of the decedent can also become the legal heir but only if the immediate family members aren’t alive. For example, if a deceased individual has a surviving spouse and children, other relatives like siblings, nieces, and nephews will not be entitled to inherit assets.

Importance of Spouse In Intestate Law of Northern California

One of the most important points of intestate law is whether the decedent has a surviving spouse or domestic partner or not. If the spouse is alive in the case then the community property will pass to the spouse at the time of death.

As for the separate property, it will be divided among all beneficiaries be it children, siblings, parents, the spouse, and so forth. You can read more about the priority order of the intestate law and the difference between community vs separate property below.

Intestate Law Priority Order

Here’s the hierarchy order of the intestate law. The first one in the order would be the priority for the designation of the beneficiary. If the first relative isn’t alive, the assets will then pass to those listed in the second and third order.

Priority Order In Immediate Family: 

  • Surviving spouse
  • Children
  • Grandchildren
  • Parents
  • Siblings

Priority Order In Extended Family: 

  • Nieces and Nephews
  • Grandparents
  • Aunts and Uncles
  • Cousins

Community Property Vs. Separate Property

Community property means the assets that are owned by both spouses, it typically happens in marriage or domestic partnership. While separate property means the property that’s owned by only one spouse.

In case of community property, if there’s a living spouse everything will go to them as they’re the sole owner of the assets after the death of the other partner. Since the separate property is the one the decedent owns, it goes through probate, and the court decides the heirs.

Spouses also inherit from the separate property but if there are more candidates like children, grandchildren, etc., the court will divide the assets among all. How much share will each beneficiary get depends on the estate and how many beneficiaries there are.

What Property Will Not Be Affected By Intestate Law?

One of the most common misconceptions is that all property goes through the probate process. In reality, it’s not true and everything will not be affected by intestate law. For example, assets in the Trust wouldn’t be distributed as per the intestate law.

Assets held in joint accounts would go to the surviving partner upon the death of the other partner. Similarly, community property is legally considered the rightful possession of the surviving spouse.

Certain assets like 401(k)s or retirement funds pass directly to the beneficiaries designated by the deceased during their lifetime. Not only this, assets like stocks with named beneficiaries easily bypass probate proceedings.

What Happens To A Bank Account When Someone Dies Without A Will?

Intestate laws do not apply to the bank account of the deceased person. This is because bank accounts often operate under a payable-on-death (POD) arrangement, meaning there is a predetermined agreement between the bank and the client regarding the distribution of funds.

As per the agreement, every bank account holder names someone as a beneficiary to receive the funds upon their passing. Since there’s already a beneficiary named to receive the money, the court does not need to intervene with intestate rules.

Final Words

The simple answer to what happens to your stuff if you die without a will is your assets will go through the probate process. In the probate court, a judge will decide who will inherit your assets within the family.

All of this happens according to the intestate law. As per the law, the property would go to the immediate family members and if they’re not alive, the court will consider the extended family members of the deceased person.

If you don’t want to leave the estate distribution case for the probate hearings, you can consider consulting with our Estate Planning lawyers. We can guide you through the estate planning process and ensure that your property is distributed according to your wishes.

Hiring an attorney isn’t as easy a task as it may seem. Not every attorney is well-versed in the intricacies of probate law, and finding the right professional to guide you through the complexities of probate proceedings is crucial.

The only way to determine whether an attorney can handle your probate case is by discussing your situation and asking the right questions. An attorney who provides accurate and helpful answers, addressing your concerns and confusion, will be the best match for you.

To assist you in this crucial decision-making process, we’ll share the seven essential questions to ask before hiring a probate attorney. The answers to these questions will not only shed light on the attorney’s expertise but also empower you to make an informed decision. 

7 Critical Questions To Ask Your Potential Probate Attorney 

Here are the seven critical questions to ask your potential probate attorney. Remember, these questions are only the minimum and basic criteria. You can add as many questions as you want related to your case. 

1. How Long Has The Attorney Been Practicing Probate Law?

The first question to ask is how long the attorney has been practicing probate law. Keep in mind that not every attorney is an expert in probate law cases, and the attorney you might be choosing could have only a few cases experience, which can be a downside. 

Check how much experience they have with probate cases. If they just started practicing probate law, it might be better to find someone else. Experience matters to make sure your lawyer knows what they’re doing.

2. What Is the Primary Focus Area of Your Practice?

After making sure your attorney has been practicing probate law, find out what the primary focus areas of practice are. Probate law is a big niche that covers many legal areas like estate planning, trust administration, wills, tax planning, power of attorney and so forth.  

It’s best to hire a probate attorney who’s experienced and has been focusing on the same area of your case. For example, if your case is about the disagreement of will, you should prefer an attorney who has been dealing with the same cases. 

3. Have You Successfully Executed The Same Cases In The Past?

Now, the third question should be about whether they’ve successfully executed the cases in the past or not. Knowing whether an attorney has successfully executed wills in the past is crucial for evaluating their competence in handling similar cases.

If the attorney replies yes, you can ask more questions, such as what the results of similar cases were. This way, you can gain insights into their ability to navigate the intricacies of will execution and provide assurance that your case will be in capable hands.

4. How Does The Probate Process Work?

You may have got all the info from the internet about how the probate process works, but it’s best to ask the attorney this question. It’s not to check the attorney’s knowledge but to understand the process better. 

The knowledge you got from the internet is general, but your attorney will tell you everything per your case. Your attorney will break down the probate process into understandable steps, outlining how assets are distributed, debts are settled, and legal matters are resolved. 

5. How Do You Charge For Your Services?

The fifth question is about how the probate attorney will charge for the services for the case. As per California law, Prob Code 10800, the attorney will get a specific percentage according to the gross value of the estate. For example: 

  • 4% on the first $100,000
  • 3% on the next $100,000
  • 2% on the next $800,000
  • 1% on the next $9,000,000
  • 0.5% on the next $15,000,000
  • Above $25,000,000, the court will decide 

However, it’s best to ask questions about the charges. Also, don’t forget to discuss the charges of court fees and other expenses that are not included in the attorney fee. Clarifying these financial aspects ensures transparency and helps you make well-informed decisions. 

6. How Long Does A Typical Probate Case Take?

The question of how long a typical probate case takes is also crucial. While the duration can vary based on factors such as case complexity and court schedules, asking this question provides insight into the attorney’s ability to outline a reasonable timeline.

It will help you get ready for what can happen in the future. You will not have unrealistic expectations that the case will be solved in minimum time. Besides everything, you can plan and navigate the probate process with a clearer understanding. 

7. What Can I Anticipate Throughout The Probate Process?

You can ask your attorney what the results of the probate can be and what you should expect. While no attorney can give an exact answer, they can tell how strong your case is and what the chances of winning are. 

By knowing the details about the case and what can happen, you can prepare yourself for the upcoming challenges. This comprehensive overview allows you to approach each stage with confidence and also shows how confident the attorney is. 


Asking the right questions is your gateway to understanding whether an attorney can handle your probate case effectively. A good attorney always provides accurate and helpful answers that align with your needs and concerns.

If you feel your attorney is failing to answer your question and can’t help you clear your mind, it’s best to consult your case with other attorneys. You can also contact probate lawyers from our firm; we offer a free consultation for our clients. 

How Does One Become An “Executor?”

An executor, also known as a personal representative, is a person appointed by a court to manage the distribution of assets and payment of debts of a deceased person’s estate. In California, the duties of an executor are governed by the Probate Code, which outlines the responsibilities and powers of the executor in the administration of the estate.

What are the Practical Duties of the Executor?

One of the primary responsibilities of an executor is to gather and inventory the assets of the deceased person’s estate. This includes identifying and locating all assets, such as real estate, personal property, bank accounts, and investments, and determining their value. The executor must also identify and notify any known creditors of the estate, and pay or make arrangements to pay any debts, taxes, and expenses of the estate.

The executor is also responsible for distributing the assets of the estate to the beneficiaries in accordance with the terms of the will or California’s laws of intestate succession if there is no will. This may include selling assets, transferring property, and making cash payments to beneficiaries. The executor must also prepare and file any necessary court documents, including an inventory of the estate’s assets and a final accounting of the estate’s finances.

Another important duty of an executor is to appear in court when necessary to answer any questions about the administration of the estate. This may include attending hearings to request court approval of certain actions, such as the sale of real estate or the distribution of assets to beneficiaries. The executor must also represent the estate in any legal proceedings, such as will contests or disputes over the distribution of assets.

What Is the Fiduciary Duty of an Executor?

In addition to these specific responsibilities, an executor also has a general duty to act in the best interests of the beneficiaries of the estate. This includes keeping beneficiaries informed about the progress of the estate administration, and providing them with any information they request about the estate. The executor must also avoid conflicts of interest and refrain from using their position for personal gain.

However, being an executor is not easy, it is a huge responsibility that requires a good deal of time, effort, and attention to detail. The executor must familiarize themselves with the probate process, including the requirements of the California Probate Code, and must be prepared to spend a significant amount of time managing the estate’s assets, paying debts, and communicating with beneficiaries.

Additionally, the executor must be able to manage the finances of the estate and make decisions regarding the sale or distribution of assets. This may include working with real estate agents, attorneys, and other professionals to manage the estate’s assets and resolve any legal issues that may arise. The executor must also be able to communicate effectively with beneficiaries, who may have different expectations and interests regarding the distribution of the estate’s assets.

In conclusion, being an executor is a complex and demanding role that requires a great deal of responsibility and attention to detail. The executor must be able to manage the estate’s assets, pay debts and taxes, and distribute assets to beneficiaries in accordance with the terms of the will or California’s laws of intestate succession. They must also be able to navigate the probate process, communicate effectively with beneficiaries, and make difficult decisions regarding the distribution of the estate’s assets. It’s a challenging role, but one that comes with the important responsibility of managing the final wishes of the deceased, and ensuring that their assets are distributed fairly among their loved ones.

Please note: This website provides information, content, and materials that are not intended to provide legal advice, but rather serve as a general resource for information. Information on this website may not constitute the most up-to-date legal or other information. Please schedule a free consultation to talk with an estate attorney for answers to your specific legal questions and legal advice for your specific case.

When you create an estate plan, you have the option to include a revocable trust. Also known as a living trust, this document allows you to choose how your assets are distributed upon death. You can retain control of the trust while you are alive and even make changes if you wish. A revocable trust also protects you if you become incapacitated, allows your heirs to avoid probate, and so much more. Properly creating and funding your trust is vital. If you make a mistake, your loved ones might have trouble accessing their inheritance. Fortunately, R. Dustin MacFarlane of California Probate and Trust, PC has spent years helping seniors create trusts. As a top trust attorney, our team create customized legal documents for clients to ensure they enjoy all of the protections and benefits.

Benefits of a Revocable Trust

Many people visit a revocable trust lawyer so they can enjoy the benefits provided by such a document.

  • Avoid probate.
  • Choose someone to manage assets if you aren’t mentally competent.
  • Select how assets are distributed.
  • Determine who gets assets.
  • Maintain privacy regarding your estate.

Plan for the Future with a Revocable Trust Attorney

When you create an estate plan, you have the option to include a revocable trust. Also known as a living trust, this document allows you to choose how your assets are distributed upon death. You can retain control of the trust while you are alive and even make changes if you wish. A revocable trust also protects you if you become incapacitated, allows your heirs to avoid probate, and so much more.

Properly creating and funding your trust is vital. If you make a mistake, your loved ones might have trouble accessing their inheritance. Fortunately, R. Dustin MacFarlane of California Probate and Trust, PC has spent years helping seniors create trusts. As a top revocable trust attorney, he creates customized legal documents for clients to ensure they enjoy all of the protections and benefits.

Benefits of a Revocable Trust

Many people visit a revocable trust lawyer so they can enjoy the benefits provided by such a document.

  • Avoid probate.
  • Choose someone to manage assets if you aren’t mentally competent.
  • Select how assets are distributed.
  • Determine who gets assets.
  • Maintain privacy regarding your estate.

Amending A Revocable Trust

A revocable trust allows you to maintain full control over your assets during your lifetime, as long as you are of sound mind. Many people choose to amend a revocable trust after getting married, getting divorced, or having a child. You can also amend your trust if you want to change how the property is distributed or add or remove beneficiaries or property. Your trust lawyer will help you make all necessary changes, ensuring that it meets the legal requirements set forth by the state of California.

Add A Pour-Over Will To Your Estate Plan

Your revocable trust attorney might recommend a pour-over will along with the trust. If you overlook some of your assets and fail to put them in the trust, your executor can transfer them if this document is in place. While those assets will have to go through probate, they will be subject to the terms of the trust after the process is over.

For many Americans, retirement accounts comprise a substantial portion of their wealth.

When planning your estate, it is important to consider the ramifications of tax-deferred retirement accounts, such as 401(k) and 403(b) accounts and traditional IRAs. (Roth IRAs are not tax-deferred accounts and are therefore treated differently). One of the primary goals of any estate plan is to pass your assets to your beneficiaries in a way that enables them to pay the lowest possible tax.

Generally, receiving inherited property is not a transaction that is subject to income tax. However, that is not the case with tax-deferred retirement accounts, which represent income for which the government has not previously collected income tax. Money cannot be kept in an IRA indefinitely; it must be distributed according to federal regulations. The amount that must be distributed annually is known as the required minimum distribution (RMD). If the distributions do not equal the RMD, beneficiaries may be forced to pay a 50% excise tax on the amount that was not distributed as required.

After death, the beneficiaries typically will owe income tax on the amount withdrawn from the decedent’s retirement account. Beneficiaries must take distributions from the account based on the IRS’s life expectancy tables, and these distributions are taxed as ordinary income. If there is more than one beneficiary, the one with the shortest life expectancy is the designated beneficiary for distribution purposes. Proper estate planning techniques should afford the beneficiaries a way to defer this income tax for as long as possible by delaying withdrawals from the tax-deferred retirement account.

The most tax-favorable situation occurs when the decedent’s spouse is the named beneficiary of the account. The spouse is the only person who has the option to roll over the account into his or her own IRA. In doing so, the surviving spouse can defer withdrawals until he or she turns 70 ½; whereas any other beneficiary must start withdrawing money the year after the decedent’s death.

Generally, a revocable trust should not be the beneficiary of a tax-deferred retirement account, as this situation limits the potential for income tax deferral. A trust may be the preferred option if a life expectancy payout option or spousal rollover are unimportant or unavailable, but this should be discussed in detail with an experienced estate planning attorney. Additionally, there are situations where income tax deferral is not a consideration, such as when an IRA or 401(k) requires a lump-sum distribution upon death, when a beneficiary will liquidate the account upon the decedent’s death for an immediate need, or if the amount is so small that it will not result in a substantial amount of additional income tax.

The bottom line is that trusts typically should be avoided as beneficiaries of tax-deferred retirement accounts, unless there is a compelling non-tax-related reason that outweighs the lost income tax deferral of using a trust. This is a complex area of law involving inheritance and tax implications that should be fully considered with the aid of a estate planning lawyer.

Every year, each individual who dies in the U.S. can leave a certain amount of money to his or her heirs before facing any federal estate taxes. For example, in 2013, a person who died could leave $5.25 million to his or her heirs (or a charity) estate tax free, and everything over that amount would be taxable by the federal government. Transfers at death to a spouse are not taxable.

Therefore, if a husband died owning $8 million in assets in 2013 and passed everything to his wife, that transfer was not taxable because transfers to spouses at death are not taxable. However, if the wife died later that year owning that $8 million in assets, everything over $5.25 million (her exemption amount) would be taxable by the federal government. Couples would effectively have the use of only one exemption amount unless they did some special planning, or left a chunk of their property to someone other than their spouse.

Estate tax law provided a tool called “bypass trusts” that would allow a spouse to leave an inheritance to the surviving spouse in a special trust. That trust would be taxable and would use up the exemption amount of the first spouse to die. However, the remaining spouse would be able to use the property in that bypass trust to live on, and would also have the use of his or her exemption amount when he or she passed. This planning technique effectively allowed couples to combine their exemption amounts.

For the year 2013, each person who dies can pass $5.25 million free from federal estate taxes. This exemption amount is adjusted for inflation every year. In addition, spouses can combine their exemption amounts without requiring a bypass trust (making the exemptions “portable” between spouses). This change in the law appears to make bypass trusts useless, at least until Congress decides to remove the portability provision from the estate tax law.

However, bypass trusts can still be valuable in many situations, such as:

(1) Remarriage or blended families. You may be concerned that your spouse will remarry and cut the children out of the will after you are gone. Or, you may have a blended family and you may fear that your spouse will disinherit your children in favor of his or her children after you pass. A bypass trust would allow the surviving spouse to have access to the money to live on during life, while providing that everything goes to the children at the surviving spouse’s death.

(2) State estate taxes. Currently, 13 states and the District of Columbia have state estate taxes. If you live in one of those states, a bypass trust may be necessary to combine a couple’s exemptions from state estate tax.

(3) Changes in the estate tax law. Estate tax laws have been in flux over the past several years. What if you did an estate plan assuming that bypass trusts were unnecessary, Congress removed the portability provision, and you neglected to update your estate plan? You could be paying thousands or even millions of dollars in taxes that you could have saved by using a bypass trust.

(4) Protecting assets from creditors. If you leave a large inheritance outright to your spouse and children, and a creditor appears on the scene, the creditor may be able to seize all the money. Although many people think that will not happen to their family, divorces, bankruptcies, personal injury lawsuits, and hard economic times can unexpectedly result in a large monetary judgment against a family member.

Although it may appear that bypass trusts have lost their usefulness, there are still many situations in which they can be invaluable tools to help families avoid estate taxes.

Q: My mother’s Revocable Trust states that her estate must be divided between her four adult children. She has now died, and each should receive about $150,000. The problem is one of my brothers is now disabled and is receiving SSI and Medi-Cal. If he receives this inheritance, it will disqualify him from his benefits and disrupt his life. Is there a way he can refuse the inheritance?

A: The answer is maybe. One way to accomplish this is by the use of a “disclaimer.” A disclaimer is a renunciation of one’s right to an inheritance. In order for a disclaimer to be effective, it must pass to the next person in line, without any direction on the part of the original beneficiary. The estate would be divided as if your brother had died before your mother.

Example: If your mother’s Trust had directed that if your brother died before she did, that his share would go to his children, then your brother could disclaim his inheritance and let it pass to his children. He could not disclaim in favor of the other brothers and sisters.

Another possible solution is to petition the Probate Court to allow the creation of a Special Needs Trust for the benefit of your disabled brother. Medi-Cal laws permits gifting of assets and still maintain Medi-Cal eligibility. Both these strategies requires the assistance of an estate planning attorney.

I received a very disturbing telephone call yesterday, which inspired today’s blog post.

A woman whose brother lay dying in the hospital called to ask a few questions about what would happen to his estate after he died. She said he had a Will, in which he left everything to his children, and provided nothing for his wife, from whom he had been separated for more than 15 years. The caller had drafted the Will, “off the Internet,” because the dying man wanted to make sure his children received his estate, and not his estranged wife.  She also said that she herself had drafted a Power of Attorney, also “off the Internet.”  She wanted to know if the dying man’s son, who held the Power of Attorney, could transfer his property into a Trust to keep it from the estranged wife.  He and this wife were not legally separated, and had no written agreement about their marital property upon separation.  In other words, he and his wife were, in the eyes of the law, legally married, and the wife had all marital rights.  

I researched ownership of his largest asset, his house, and discovered that it was owned, with the estranged wife, as “joint tenants with rights of survivorship.”  I explained to the caller that in this case, the husband and wife each held a 100% interest in the house, and that upon her brother’s death, the house would go to the wife, even though they hadn’t lived together in 20 years.  Regardless what the Will or any Trust would say, the Deed trumps the Will or Trust.

The caller also admitted that the Will that she had downloaded off the Internet did not mention the wife at all.  In California, a spouse has a statutory right to at least part of the dead spouse’s estate. If the spouse is not mentioned in the will and is not clearly disinherited, it could result in her being declared “pretermitted,” or “forgotten,” and the Court could grant her a statutory portion of the estate. The Internet Will had failed to do this.

I explained that a “form Power of Attorney” downloaded off the Internet probably did not give the dying man’s son the authority to make gifts, i.e., he could not transfer his assets to a Revocable Trust. And even if the POA permitted this, the son could not transfer the house into the Trust without the permission of the estranged wife… something that was unlikely to happen.

This tragic scenario demonstrates three hard but important lessons:  (1) Don’t wait until you’re on your death bed before considering your estate plan; (2) Don’t expect forms downloaded from the Internet to provide you with the customized legal advice that a good estate planning attorney can provide; and (3) The lack of good legal advice can be much more expensive than a trust attorney’s fee.

When potential clients begin to discuss estate planning, we attorneys often hear similar concerns repeatedly. They do not want to burden family members who may provide care, especially in a serious illness. They do not want the government to control their real estate or personal property when they die. They want to make sure the correct people get their possessions — and the wrong people do not.

While people tend to have strong feelings about these estate planning concerns, they still hesitate to begin the process. They likely think they have more time or do not want to face their mortality

Although you may want to avoid the discussion, estate planning will provide you with vital peace of mind. An experienced estate planning attorney can help make sure that survivors will respect your wishes.

Each client has a unique situation, but in general, an estate planner recommends that you have four key elements in place:

1.Your Last Will and Testament

For many people new to the process, a will is synonymous with estate planning. This legal document empowers you to decide what happens to your property after your death. Family, friends, favorite charities, or a combination of these, tend to be common beneficiaries.

Suppose you do not have a will when you die. In that case, California has rules of intestate succession that control the distribution of your estate, including retirement accounts, real estate, and personal property.

Under these rules, the distribution begins with the surviving spouse for married couples, followed by surviving children. Parents, siblings, nieces, nephews, grandparents, aunts, uncles, and cousins all take a place in line if you have no surviving spouse or children.

If you have strong feelings about the distribution of your assets, a will can give you peace of mind.

Still, after your death, the will goes into probate, costing time and money. If you want to spare your family the probate process, you should add a living trust to your estate plan.

2.Living Trust

A living trust, also called a revocable trust, is a legal document that gives a trustee the power to control property for a beneficiary or beneficiaries.

Since you establish the trust, you will act as the first trustee. The agreement sets forth the person who will assume the title of a trustee when you die or become unable to handle your personal affairs. It also details how the assets covered by the trust will be distributed.

A living trust does not need to go through the probate process. You can also alter or revoke the trust at any time so that you do not relinquish any control of your assets while you are alive.

Wills and trusts work well together, covering your assets and your wishes while avoiding the time and cost of probate. A trust attorney can answer any questions you may have about this part of the process.

3.Power of Attorney

When you complete a durable general power of attorney, you designate another person to control your property and financial interests if you become incapacitated.

A power of attorney provides significant authority, so you must make your selection carefully. Should the time come when you cannot make your own decisions, you want that power to rest in the hands of someone you trust.

4.Living Will

Your living will, also called an advance health care directive, protects your wishes regarding medical treatment.

The form created by the State of California features one section that acts as a power of attorney specifically for health care. You name someone who will make health care treatment decisions for you if you cannot do so on your own.

The second section allows you to set forth specific directions for your care that your doctors and your appointee in the first section must follow. The document will enable you to choose under what conditions you do and do not want life-sustaining care.

The third section of the living will gives you the power to choose whether or not to donate your organs, while the fourth section provides for your choice of a primary doctor. Your appointee from section one will make these decisions if you do not specify your preferences in advance.

With these four items in place, you can decide what will happen to your most precious possessions after you die. Though you may be avoiding estate planning, you will have great peace of mind when you complete the process with an attorney you trust. Plus, you can make sure your assets do not fall into the wrong hands.

Contact California Probate and Trust, PC for Your Estate Planning Needs

The knowledgeable and experienced team of professionals at California Probate and Trust, PC in Fair Oaks, California, can help protect your assets and interests. We look forward to assisting you with a wide range of customized estate planning services.

Listen to Estate Planning Attorney and Founder of California Probate and Trust, PC, R. Dustin MacFarlane, discuss Death & Dying, And DIY on his podcast, Legally Speaking:


California Probate and Trust, PC offers a free estate planning guide that gives you some vital information. Call our 24-hour hotline at 916-603-2782 to leave your name, number, and mailing address. We will send your guide to you ASAP.

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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.

California Probate and Trust, PC
9701 Fair Oaks Blvd
Fair Oaks, CA 95628