A Trust avoids probate because during your lifetime you have transferred the ownership of your property from yourself as an individual, over to your Trust of which you are the creator, sometimes called Trust Maker, Settlor, Trustor, Grantor and you’re also the manager of your Trust, called a Trustee.

You may also be the beneficiary during your lifetime of your own Trust. You as the Trust Maker will not own your property after your assets have been funded into the name of your Trust. Legally the property will be owned by the Trustee for the benefit of the Trust beneficiary. Therefore, upon your death, since the property is no longer in your name, the property will not need to be distributed by a Probate Court. Your Trust did not die with you; the Trust continues as its own separate legal entity.

A joint Trust, commonly known as an A/B Trust, can specify how property Will be distributed upon your death. Upon the first death the Trust estate is generally divided so that each Trust (the A and B) holds ½ of the Trust estate.

The B Trust becomes irrevocable at the first death and therefore can safeguard the testamentary intent of the deceased spouse. This is important in a second marriage where each spouse wants to ensure that their share is locked in, not changeable, for their chosen beneficiaries. This is the simplest and most direct way to protect the inheritance for children from a first marriage.  The design of an A/B Trust is complicated and Will require a qualified Estate Planning firm to create.

You Will need to have the following documents:

1. Trust
2. Certificate of Trust
3. Funding Instructions
4. Letter of Instruction
5. Property Schedules
6. Pour-over Will,
7. Advance Healthcare Directive,
8. Durable Power of Attorney

The cost to prepare a Will  depends on the amount of time spent during the consultation; identifying how you want your estate distributed upon your death, whether your Will needs a Testamentary Trust or any other complexities that your estate and distribution pattern may have.

The estate plans centered around a Will are generally less expensive than an estate plan centered around a Trust because property is not transferred to a Will at the time it is created.

We at Copenbarger & Copenbarger LLP have nine attorneys and 35 support staff.  So, if your attorney dies there are eight other attorneys that will take over and be able to protect you and your family.  That is why it’s important to hire an attorney that is part of a larger law firm.

Yes, a Revocable Trust is a better document to transfer your property at your death.

A Will is a testamentary document that you complete during your life and upon your death, the property will be distributed through a court process called Probate.  Probate is an expensive procedure and is very time consuming, and it is not a private.

A Trust is a legal document that you create during your life, and upon your death, the property that is owned by the Trust is transferred to your beneficiaries without the involvement of Probate. A Trust is a private document, a Trust can help you if you become incapacitated, these are just a few reasons why a Trust is a better way to transfer your property at your death.

A Trust is a legal binding document prepared in accordance to specific legal procedures. Amending your Trust requires that amendments be done following the same legal procedures. Writing on your Trust may create ambiguities, confusion and can lead to fighting among your beneficiaries and perhaps even having a Court involved in figuring out what you really meant. Not a good idea to write on your documents.

The schedule of assets is prepared for several reasons:

1. The schedule will provide a “snapshot” of what assets you owned when you created your Trust. This may be helpful so your beneficiaries may have some idea of what assets were part of your estate.
2. Probably most important is the schedule will provide a Court with a list of assets that you intended and wanted to be a part of your Trust. If an asset is omitted from being owned by your Trust it may be subject to probate, but if we can show a court that you intended for that asset to have been owned by your Trust, then we may be able to petition the court to have the assets  placed in your Trust without a formal probate. This is called a Heggstad petition.

Often the Trust maker of a Revocable Trust omits certain property or forgets to transfer an asset into their Trust. In these situations, the property would typically have to go through probate before being distributed to their beneficiaries. California, has a procedure commonly called a Heggstad petition that may allow you to transfer these assets directly into the Trust, bypassing the probate process. This petition generally depends on whether the decedent clearly intended to include the assets or property in their Trust. This is one of the reasons that a Schedule of Assets is created indicating the Trust makers intent to transfer the listed assets into their Trust.

The process in our office will generally take anywhere between four to six weeks.  This process includes meetings where we listen to your wishes, desires, and concerns so we can translate your desires into a set of legal documents that are prepared specifically for you and your family. We will also have meetings so we can explain how your documents work, and if the documents meet with your approval the documents are signed, notarized and witnessed. If there are emergency situations, our office will work with you to have the Estate Plan completed to cover the emergency. 

Your Will is a testamentary legal document that distributes your property upon your death. Probate may be required so the Probate Court can transfer your property, now that you are deceased, into the name of a beneficiary.

Probate in California can take between a year and a year and a half, and is very expensive.  The fees are based on the gross value of the estate that is subject to the Probate process.

Be aware that not all Wills have to go through a full Probate process. In California there are several different procedures that may involve the court or in some cases do not involve the court. Typically, if your estate is under $166,250, it may not require Probate.