Balamuth Law, P.C.

The estate planning documents that we prepare are good in any state in the United States. You can travel, you can move, and still rely on those documents to be there for you. That being said, some states have very different laws, or even slight tweaks, where maybe what you're wanting ... who gets what under what circumstances, how that happens, it would be slightly different under that state's laws versus under California laws. You want to make sure when you move, that you do get in touch with an attorney in that state, they can review the estate plan that we helped you put in place.

There's actually two that I've run across. One is that a lot of people think a will covers every estate planning contingency, all you need is the will and you're good, and that's absolutely not true. A will doesn't cover what happens if you're incapacitated or disabled and a will has to go through the probate court. Myth number two is that a lot of people believe that if they are incapacitated or disabled and they're married then their spouse can automatically exclusively act for them, and that's actually not true. Even though you're married, there is no presumption that your spouse has your best interest at heart and so your spouse would actually have to go to the probate court. If you're needing medical decisions and financial decisions made on your behalf, your spouse has to actually go to court just like anyone else.

What I can tell you for sure is that there are questions you would not have even known to ask. That's really actually the most common feedback from clients and from those who attend our free talks and webinars, is that they had to think through things that they hadn't even thought about before, and that they were really comforted in knowing that those questions were explored, and that those answers were ultimately put into their estate plans. So that way everything is covered, no stone goes unturned, as what one client actually said about our process.

The typical process takes about eight to ten weeks start to finish, and we can definitely expedite that if you're about to travel internationally, or if you're about to have a baby. But we do encourage you to start the process with a free educational estate planning talk. You get to learn about what to think about when it comes to estate planning in a group format and hopefully what we think is an entertaining way to teach you about estate planning and concerns. You can sign up for one of those talks on our website under the "events" tab.

Think of a trust as a will-substitute. A will says who gets what, under what circumstances, and who's in charge of making that happen. A trust does the same thing. The critical difference between a will and a trust is that a will must be filed with a probate court and reviewed and approved before anyone can act under it or receive any assets from your estate. So everything filed in the probate court, including the will, becomes a public record, and, as you might imagine, it takes time to go through a public court proceeding. A trust, on the other hand, is a completely private document. No one's entitled to see it except those who are named in it. The successor trustee named in your trust can act immediately, without having to go to court, file anything, or get permission first. So a trust is more immediate and efficient, as well as private. A will and a trust are similar in what they try to achieve, but a trust is more efficient and private.

This is really a very client-specific question. We don't take the approach that everyone must avoid probate. We take the approach that we'd like to educate you about what probate is, how you can avoid it, and then, you, as a client, are deciding what is the best route to go. Probate is a court proceeding. Everything filed in court becomes a public record, which means things that were kept quiet, who your heirs are and what they're receiving before you passed away now becomes public. Another thing to consider is because probate is the court system, there are delays or it just takes a while to get through the court system versus being able to act quickly and immediately. So if you decide you want to make sure that your family can act quickly and efficiently on your behalf and keep things private, you may want to avoid probate.

You might hear that the point of estate planning is to avoid probate. Probate is simply a court system. Every state has their own probate court system where a judge says who is in charge of an estate. So if you pass away, who's in charge of making sure that your assets go to the heirs who are legally entitled to them. Probate court is the plan for those without a plan, or for those that have only a will (and not a trust), because that is who ends up in probate court. If you haven't done estate planning to avoid probate, you're leaving it up to a probate judge to figure out who's in charge of your finances if you're incapacitated, who's guardian of your children if something happens to you and you leave minor children, who's in charge of getting your assets gathered and inventoried and paying your creditors and, ultimately, distributing your estate out to your heirs. That's where a probate judge comes in to fill in the gaps.

We never recommend naming a minor child as a beneficiary of any asset, whether it's life insurance or retirement accounts. The reason\: If you, as the asset holder, pass away and that asset becomes payable to a minor child, then that minor child legally is the owner but also legally can't be in charge of that asset on their own. That means the court would actually step in and appoint someone to be in charge of that asset until your child reached age 18 or in some cases, 21. As part of your estate plan, you can make that choice ahead of time, so you're not relying on what a judge would choose. So if you name a minor child outright as a beneficiary, you are leaving it up to chance that if something were to happen before that child reaches adulthood, a judge will ultimately be deciding who holds the money for the child and then the child will receive all the funds being held outright at 18 years old.

You want to select someone who has a similar parenting philosophy and style on things like discipline, educational choices, extra curricular activities, etc... And to the extent that you actually let them know ahead of time what you would want. It really goes a long way to help your guardian honor you and raise your children just how you would. I would caution you about naming a guardian based solely on their resources. Finances in and of themselves are not the best way to choose a guardian because ideally you will be leaving enough finances and support for your children to raise them and get them through high school and ultimately college and beyond. It is a totally separate decision between the best way to handle finances for children, and pay for their raising versus \ who really can raise them as closely aligned with what you would want in terms of how they're raised.

If you pass away with no will in place, state law fills in the gaps. State law will dictate who gets what and tends to follow what you might expect people to choose. A surviving spouse is the primary heir, and then children after that. If there are no spouse or children living, then your estate would go to your parents, and then ultimately your siblings, and nieces, and nephews, until someone is available to receive your estate. This can get really tricky if you have a blended family or either you have children from a different relationship. State law also doesn't clarify who is in charge of the assets left to a minor, or an incapacitated beneficiary.

The short answer is yes. A will says who gets what, but that's not the only question when it comes to estate planning. Estate planning covers what if you're incapacitated or disabled, who's in charge of your assets and your medical decisions or your minor children if you're a parent of minors, who's caring for them during that time, and then ultimately who would be raising them if something were to happen. So, you definitely need more than a will. Every adult needs a power of attorney, advanced healthcare directives and HIPAA release at a minimum. Whether you need a will and a trust is a separate question, but definitely a will alone doesn't cover all of your estate planning needs.

An estate plan comprehensively covers a lot of contingencies beyond just who gets what. Who gets what is definitely an important question, but it's only one piece of the puzzle. Estate planning also covers\ incapacity and disability. Who is making sure that your bills are paid and your assets are being managed if you can't do that? Who is making medical decisions for you, and who can talk to your doctors just to find out how you're doing? So, an estate plan covers that piece. It also covers guardianship. If you're parents of a minor child, you want to make sure that you've got the short-term emergency situation covered, who can be with your children overnight or for a short period if you need help, and then also who would raise them. That's long-term guardianship.

A will is a document where you say who gets what and who is in charge of making that happen. Someone named in a will to receive your assets is called an heir or beneficiary, and the person put in charge of making that happen is called a personal representative or an executor. It's important to note though that wills do not apply to assets where you have a surviving joint owner of that asset or to assets where you have a living beneficiary designated. For example, on retirement accounts and life insurance, if you have a spouse named and then your children, then that asset will be payable directly to the living beneficiary who's named regardless of what your will says. If you have a will, and a will is really critical for your estate plan, you need to make sure that it's in sync with everything owned jointly and also everything where you have a beneficiary named to make sure it all is working together according to your wishes.