Estate planning enables you to:
Probate is a legal process supervised by the court. The purposes of probate are:
A deceased person’s assets and debts may be subject to the probate process when that person dies with only a will or dies intestate (i.e., without a will).
If you die without a will, your property will have to go through the probate process if your assets are sufficient to trigger the probate process and the transfer of your property is not controlled by the title to the property (ex: joint tenancy). Your assets will be distributed through the courts and will go to the people determined under California’s intestacy laws (aka “intestate succession”). The court will appoint an administrator to handle the estate. In addition, the court will appoint a guardian for any orphaned minor children.
If you die without a will (i.e., “intestate”), the State of California has already predetermined how your property will be distributed. Contrary to popular belief, a surviving spouse does not necessarily inherit everything. For example, a surviving spouse may only get one-half (1/2) or one-third (1/3) of the decedent’s (deceased person’s) separate property, depending on if the decedent died leaving children, grandchildren, parents, siblings, or nieces/nephews. A surviving spouse will inherit the decedent’s share of any community or quasi-community property.
If the decedent’s children are minors and they receive an interest in the separate property, a guardianship must be created for the children’s funds and the guardian must report annually to the court until the children reach age 18. If the children are orphans, the court will also need to appoint a guardian to raise the children.
A will does not shield assets from probate. However, there are still benefits to having a will, such as:
A trust enables you to:
A single person, a married person or a married couple may establish a trust.
A Living Trust is another name for a Revocable Inter Vivos Trust, which is one type of trust. “Inter vivos” means “during life,” and refers to a trust that is created when the settlor (aka “grantor” or “trustor”) starts the trust during the settlor’s lifetime. Usually a Living Trust may be revoked or amended (changed) during the settlor’s lifetime. There are other types of trusts which have specific tax, economic or management purposes.
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