Probate, Bankruptcy, Trusts & Estate Planning

What is a Will?

A will is a written or oral communication by a person stating how they want their property disposed of at death.

Different Types of Wills:

There are several different types of wills one can use to dispose of his or her estate.

  • Self-proving will – A will that has been witnessed and signed with all of the formalities required by state law. This is the most common will.
  • Holographic will – A will that is handwritten without the presence of witnesses. Very few states recognize these types of wills, and only in limited, specific circumstances. California recognizes holographic wills.
  • Oral will – This type of will is an unwritten disposition of property, whereby the individual orally communicates his or her wishes. Oral wills are only recognized in a few states and usually only in compelling situations.
Requirements for a Will:

There are several requirements for a will:

  • Sound mind – This means that you must:
    • Be at least 18 years old or an emancipated minor
    • Know what a will is
    • Know that you are making a will
    • Understand your relationship between yourself and the people who care for you (i.e. immediate family members, including spouse and family).
  • Expressly state that this document is your will
  • Sign and date the will
  • Signed (“attested”) by at least two or three witnesses – The number of required witnesses depends on state law. In addition, most states require that the witnesses be unrelated to you. California requires two witnesses to sign a will.
  • Have one substantive provision that:
    • Appoints a guardian for any minor children
    • Lists who inherits specific items
    • States what happens to remaining property not specifically mentioned in the will
  • Appoint an executor
    • Responsible for supervising the distribution of property
    • Makes sure that all your debts and taxes are paid

What is a Trust?

A trust is a legal property interest held by one person (trustee) for the benefit of another (beneficiary).

Different Types of Trusts

There are several different types of trusts one can create:

  • Living trust – A trust that is created while you are alive. A living trust allows the trustee and beneficiary to avoid the probate process.
  • Testamentary trust – A trust established through a will. A testamentary trust generally must go through probate.
  • Revocable trust – A trust that can be terminated at any time by the grantor for any reason.
  • Irrevocable trust – A trust that cannot be changed or terminated for any reason.
Requirements for a Trust

Creating a trust is a relatively simple process. All that you must do is fill out a:

  • Valid Declaration of Trust form
  • Sign over the required deeds for property such as homes and automobiles that will be included in the trust
Advantages of a Trust
  • Property in a living trust does not go through probate
  • The trust document is never made public like a will
  • You can name alternative beneficiaries to inherit property if a primary beneficiary dies before you do
  • Allows others to handle your assets when you are not able to
Do I Need an Attorney to Draft a Will or Trust?

If you choose to create a will or trust, it is always wise to consult with an attorney experienced in Estate Planning. The potential tax implications and legal formalities of drafting Wills and Trusts make a lawyer’s counsel indispensable. A lawyer can explain all your options and help you understand what type of plan right for you and your family.

Bankruptcy – An Overview

Bankruptcy can allow you to wipe out your debts and “Start Over” by authorizing a liquidation where the trustee collects all of your assets, and sells any assets not exempt under either state or federal law. The trustee then sells the assets and pays you, the debtor, any amount exempted. The net proceeds of the liquidation are then distributed to your creditors with a commission taken by the trustee overseeing the distribution.

For many who are buried in debt, this is an appealing option, however it is not as simple as saying that you simply “can’t pay”. There are a number of options as well as many restrictions and possible consequences. You need a qualified attorney to guide you through the process to be sure you are making the choice that is right for you, and that the filing is done properly

Adoption – An Overview

Adoption establishes a legally recognized, lifelong relationship between a parent and child. The adoptive parent becomes legally and morally responsible for the child’s safety, education, healthcare, development of values and life skills, and the overall day-to-day care of the child. Our society created adoption as a means to meet the needs of children whose biological parents are not able to assume these rights and responsibilities. If you are considering adoption, a qualified attorney will guide you through the process.