California Estate Planning
1. WHAT IS ESTATE PLANNING?
Estate planning is a process. It involves people -your family, other individuals and in many cases charitable organizations of your choice. It also involves your assets and all the various forms of ownership and title that those assets may take.
As you plan your estate, you will consider:
* How your assets will be managed for your benefit if you are unable to do so
* When certain assets will be transferred to others, either during your lifetime, at your death, or sometime after your death
* To whom those assets will pass
Estate planning also addresses your welfare and needs, planning for your own personal care and health care if you are no longer able to care for yourself. Like many people, you may at first think that estate planning is simply the writing of a will. But it encompasses much more. As you will see, estate planning may involve financial, tax, medical and business planning. A will is one part of that planning process, but other documents are needed to fully address your estate planning needs. The purpose of this material is to summarize the estate planning process and how it can address and meet your goals and objectives.
As you consider it further, you will realize that estate planning is a dynamic process. Just as people, assets and laws change, it may well be necessary to adjust your estate plan every so often to reflect those changes.
2. WHAT IS INVOLVED IN ESTATE PLANNING?
In starting to consider your estate plan, I ask my clients to complete a brief questionnaire to answer the first of the following questions and during our initial meeting we discuss the other questions:
* What are my assets and what is their approximate value?
* Whom do I want to receive those assets -and when?
* Who should manage those assets if I cannot, either during my lifetime or after my death?
* Who should have the responsibility for the care of my minor children, if any, if I become incapacitated or die?
* If I cannot take care of myself, who should make decisions on my behalf concerning my care and welfare?
3. WHO NEEDS ESTATE PLANNING?
Whatever the size of your estate, you should designate the person who, in the event of your incapacity, will have the responsibility for the management of your assets and your care, including the authority to make health care decisions on your behalf. How that is accomplished is discussed below in this material. If your estate is small in value, you may focus simply upon who is to receive your assets after your death and who should be in charge of its management and distribution.
If your estate is larger, we will discuss with you not only who is to receive your assets and when, but also various ways to preserve your assets for your beneficiaries and to reduce or postpone the amount of estate tax which otherwise might be payable on your death.
If one does no planning, then California law provides for the court appointment of persons to take responsibility for your personal care and assets. California also provides for the distribution of assets in your name to your heirs pursuant to a set of rules to be followed if you die without a will; this is known as “intestate succession. ” If you die without a will and if you have any relatives (whether through your own family or that of your spouse), regardless of how remote, they will be your heirs. Nonetheless, they may not be the people you would want to inherit from you; therefore, a living trust or a will is the preferable approach.
4. WHAT IS INCLUDED IN MY ESTATE?
Your estate consists of all property or interests in property which you own. The simplest examples are those assets which are in your name alone, such as a bank account, real estate, stocks and bonds, furniture, furnishings and jewelry.
You may also hold property in many forms of title other than in your name alone. Joint tenancy is a common form of ownership which takes assets away from control by will or living trust. Beneficiary designations on securities accounts and bank accounts are alternatives which must be carefully considered as well.
Finally, assets which have beneficiary designations, such as life insurance, IRAs, qualified retirements plans and some annuities are very important parts of your estate which require careful coordination with your other assets in developing your estate plan.
The value of your estate is equal to the “fair market value” of each asset that you own, minus your debts, including a mortgage on your home or a loan on your car.
The value of your estate is important in determining whether, and to what extent, your estate will be subject to estate taxes upon your death. Planning for the resources needed to meet that obligation at your death is another important part of the estate planning process.
5. WHAT IS A WILL?
A will is a traditional legal document which is effective only at your death to:
* Name individuals (or charitable organizations) to receive your assets upon your death (either by outright gift or in trust)
* Nominate an executor, appointed and supervised by the probate court, to manage your estate, pay debts and expenses, pay taxes, and distribute your estate in an accountable manner and in accordance with your will
* Nominate the guardians of the person and estate of your minor children, to care and provide for your minor children
Assets or interests in property in your name alone at your death will be subject to your will and subject to the administration of the probate court, generally in the county where you reside at your death.
6. WHAT IS A REVOCABLE LIVING TRUST?
A revocable living trust is also commonly referred to as a revocable inter vivos trust, a grantor trust or, simply, a living trust. A living trust may be amended or revoked by the person creating it (commonly known as “trustor,” “grantor,” or “settlor”) at any time during the trustor’s lifetime, as long as the trustor is competent.
A trust is a written agreement between the individual creating the trust and the person or institution named to manage the assets held in the trust (the “trustee”). In many cases, it is appropriate for you to be the initial trustee of your living trust, until management assistance is anticipated or required, at which point your trust should designate an individual, bank or trust company to act in your place.
The terms of the trust become irrevocable upon the trustor’s death. Because the trust contains provisions which provide for the distribution of your assets on and after your death, the trust acts as a substitute for your will, and eliminates the need for the probate of your will with respect to those assets which were held in your living trust at your death.
You should execute a will even if you have a living trust. That will is usually a “pour over” will which provides for the transfer of any assets held in your name at your death to the trustee of your living trust, so that those assets may be distributed in accordance with your wishes as set forth in your living trust.
7. WHAT IS PROBATE?
Probate is the court-supervised process developed under California law which has as its goal the transfer of your assets at your death to the beneficiaries set forth in your will, and in the manner prescribed by your will. It also provides for the relatively quick determination of valid claims of any creditors who have claims against your assets at your death.
At the beginning of probate administration, a petition is filed with the court, usually by the person or institution named in your will as executor. After notice is given, and a hearing is held, your will is admitted to probate and an executor is appointed. If you die “intestate” (that is, without a will), your estate is still subject to probate court administration and the person appointed by the court to handle your estate is known as the “administrator. “
If the assets in your name alone at your death do not include an interest in real estate and have a total value of less than $100,000, then generally the beneficiaries under your will may follow a statutory procedure to effect the transfer of those assets pursuant to your will, subject to your debts and expenses, without a formal court-supervised probate administration.
A probate has advantages and disadvantages. The probate court is accustomed to resolving disputes about the distribution of your assets in a relatively expeditious fashion and in accordance with defined rules. In addition, you are assured that the actions and accountings of your executor will be reviewed and approved by the probate court.
Disadvantages of a probate include its public nature; your estate plan and the value of your assets becomes a public record. Also, because lawyer’s fees and executor’s commissions are based upon a statutory fee schedule computed upon the gross (not the net) value of the assets being probated, the expenses may be greater than the expenses incurred by a comparable estate managed and distributed under a living trust. Time can also be a factor; often distributions can be made pursuant to a living trust more quickly than in a probate proceeding.
8. TO WHOM SHOULD I LEAVE MY ASSETS?
Once you have determined who should receive your assets at your death, I can help you clarify and appropriately identify your beneficiaries. For instance, it is most important to clearly identify by correct name any charitable organizations you wish to provide for; many have similar names and in some families, individuals have similar or even identical names.
It is also important for you to consider alternative distribution of your assets in the event that your primary beneficiary does not survive you.
As for beneficiaries who by reason of age or other infirmity may not be able to handle assets distributed to them outright, trusts for their benefit may be created under your will or living trust.
9. WHOM SHOULD I NAME AS MY EXECUTOR OR TRUSTEE?
After your death, the executor of your will and the trustee of your living trust serve almost identical functions. Both are responsible for ensuring that your wishes, as set forth in your will or living trust, are implemented. Although your executor is generally subject to direct court supervision, both the executor and the trustee have similar fiduciary responsibilities. The trustee of your living trust may assume responsibilities under that document while you are living.
While you may act as the initial trustee of your living trust, if you become incapable of functioning as a trustee, the designated successor trustee will then step in to manage your assets for your benefit. An executor or trustee may be a spouse, adult children, other relatives, family friends, business associates or a professional fiduciary such as a bank.
I discuss this matter will my clients. There are a number of issues to consider. For example, will the appointment of one of your adult children cause undue stress in his or her relations with siblings? What conflicts of interest are created if a business associate or partner is named as your executor or trustee? Will the person named as executor or successor trustee have the time, organizational ability and experience to do the job effectively?
10. HOW SHOULD I PROVIDE FOR MY MINOR CHILDREN?
A minor child is a child under 18 years of age. If both parents are deceased, a minor child is not legally qualified under California law to care for himself or herself. In your will, therefore, you should nominate a guardian of the person of your minor children to supervise that child and be responsible for his or her care until the child is 18 years old.
Such a nomination can avoid a “tug of war” between well-meaning family members and others if a guardian is required.
A minor is also not legally qualified to manage his or her own property. Assets transferred outright to a minor must be held for the minor’s benefit by a guardian of the child’s estate, until the child attains 18 years of age. You should nominate such a guardian in your will as well. In providing for minor children in your estate plan, you should consider the use of a trust for the child’s benefit, to be held, administered and distributed for the child’s benefit until the child is at least 18 years old or some other age as you may decide. You may also consider a custodian account under the California Uniform Transfers to Minors Act as an alternative in making specific gifts to minors.
11. WHEN DOES ESTATE PLANNING INVOLVE TAX PLANNING?
Estate taxes are imposed upon an estate which has a net value, in 2002, of $1,000,000 or more. Under current law, that amount will increase, in uneven increments, to $3,500,000 in 2009. Estate taxes are scheduled to be repealed for 2010. In 2011, estate taxation will revert to the law which existed before the enactment of the 2001 tax law changes, so that an estate which has a net value of $1,000,000 or more will be subject to estate taxes. (See Estate Planning Under the 2001 Tax Relief Act: What To Know And What To Do). For estates which approach or exceed the exemption amount, significant estate taxes can be saved by proper estate planning, usually before death and, in the case of married couples, before the death of the first spouse. Estate planning for taxation purposes must take into account not only estate taxes, but also income, gift, property and generation-skipping taxes as well. Qualified legal advice about taxes should be obtained during the estate planning pr!
12. HOW DOES THE WAY IN WHICH I HOLD TITLE MAKE A DIFFERENCE?
The nature of your assets and how you hold title to those assets is a critical factor in the estate planning process. Before you change title to an asset, you should understand the tax and other consequences of any proposed change. I will be able to advise you about such matters.
Community property and separate property
If you are married, assets earned by either you or your spouse while married and while a resident of California are community property. On the other hand, a married individual may own separate property as a result of assets owned prior to marriage or received by gift or inheritance during marriage. There are significant tax considerations which need to be addressed in the estate planning process with respect to both community property and separate property. There are also significant property interests to consider.
Separate property can be “transmuted” (that is, changed) to community property by a written agreement signed by both spouses and drafted in conformity with California law.
It is important to seek competent legal advice when determining what character your property is and how the property should be titled.
Joint Tenancy Property
Regardless of its source, if a property is held in joint tenancy, it will pass to the surviving joint tenant by operation of law upon the death of the first joint tenant. On the other hand, property held as community property or as tenants in common, will be subject to the will of a deceased owner.
13. WHAT ARE OTHER METHODS OF LEAVING PROPERTY?
A number of assets are transferred at death by beneficiary designation, such as:
* Life insurance proceeds
* Qualified or non-qualified retirement plans, including 401(k) plans and IRAs
* Certain “trustee” bank accounts
* “Transfer on death” (or “TOD”) securities accounts
* “Pay on death” (or “POD”) assets, a common title on U.S. Savings bonds
These beneficiary designations must be carefully coordinated with your overall estate plan. Your will does not govern the distribution of these assets.
14. WHAT IF I BECOME UNABLE TO CARE FOR MYSELF?
If you do not make any arrangements in advance, a court-supervised conservatorship proceeding may be required if you become incapacitated.
Conservatorships are proceedings which allow the court to appoint the person responsible for your care and for the management of your estate if you are unable to do so yourself.
You should, therefore, select the person or persons you wish to care for you and your estate in the event that you become incapable of managing your assets or providing for your own care.
With respect to the management of your assets, the trustee of your living trust will provide the necessary management of those assets held in trust. However, to deal with assets which may not have been transferred to your living trust prior to your incapacity or which you may receive after incapacity, a durable power of attorney for property management should be considered. In such a power, you appoint another individual (the “attorney-in-fact”) to make property management decisions on your behalf. The attorney-in-fact manages your assets and functions much as a conservator of your estate would function, but without court supervision. The authority of the attorney-in-fact to manage your assets ceases at your death.
A durable power of attorney for health care allows your attorney-in-fact to make health care decisions for you when you can no longer make them yourself. It may also contain statements of wishes concerning such matters as life sustaining treatment and other health care issues and instructions concerning organ donation, disposition of remains and your funeral.
15. WHO SHOULD HELP ME WITH MY ESTATE PLANNING DOCUMENTS?
Can I Do It Myself?
Wills and trusts are legal documents which should be prepared only by a qualified lawyer. You should be wary of organizations or offices who are staffed by non-lawyer personnel and who promote “one size fits all” living trusts or living trust kits. An estate plan created by someone who is not a qualified lawyer can have enormous and costly consequences for your estate and may not achieve your goals and objectives. However, many other professionals and business representatives may become involved in the estate planning process. For example, certified public accountants, life insurance salespersons, bank trust officers, financial planners, personnel managers and pension consultants often participate in the state planing process. Within their areas of expertise, these professionals can assist in planning your estate.
16. WHAT ARE COSTS INVOLVED IN ESTATE PLANNING?
The costs of estate planning depend on your individual circumstances and the complexity of documentation and planning required to achieve your goals and objectives. The costs generally will include my charges for putting your financial information into my computerized estate planning program which enables me to graphically show you the effects of alternate plans, discussing your estate plan with you and for preparing your will, trust agreement or other legal documents which you may need.