If I have a Living Trust, do I need a Will?
Yes. You should always have a Will with a Trust. Most of the time the type of Will is called a "pour-over" Will. It is a Will that provides for any of your assets outside the Trust at your death to "pour-over" into your Trust so that all of your assets can be distributed through one system. Hopefully, if you have included everything in your Trust, you won't need the Will, but experience has taught me people frequently forget to include some things and the Will is a good backup.
Does a Will do the same thing as a Trust?
A regular Will (not a "pour-over" Will with a Trust) is a document you sign during your life that specifies what you want done with your estate when you die. Unlike a Trust, a Will is not effective until your death. During your life you typically continue to hold title to your property in your own name. On your death, depending on the size of your estate, your Will would be submitted to probate. Probate is a supervised court process to gather your assets, make sure your debts are paid and the remaining assets are properly distributed.
The advantage of a Will is that it usually is less expensive to prepare than a Trust (sometimes called a Living Trust or a Revocable Trust) and its related documents. Also, with probate there is court supervision. Some disadvantages are expenses associated with the probate process, and possibly the length of time it will take to complete the probate.
California law provides for a statutory fee to the attorney and personal representative (sometimes referred to as an Executor or Administrator). They are both entitled to the same fee which is based on the value of the estate passing through probate. Currently, that fee is 4% of the first $100,000, 3% of the next $100,000, and 2% of the next 800,000. For larger estates, the percentage is less. For example, if your estate was worth $300,000 on your death, the attorney's fee and the personal representative's fee could each be $9,000. If you estate was worth $600,000, the fees could be $15,000 each. Some estates have other issues that must be resolved not typical of all estates. Depending on the complexity of the issues and the effort involved to resolve them, a judge could also authorize what are called "extraordinary fees" in addition to the fees referenced above. There also will be additional expenses such as filing fees, publication expenses, possibly probate referee fees and other miscellaneous costs.
In California, it is unlikely even the simplest probate can be completed in less than 6 months.
If your estate is in California and less than $150,000, there may be a simpler, less expensive and quicker way to transfer your assets without a full probate.
The information set forth above is intended as a general summary of the most common situations incurred. There are many other circumstances which can create other situations providing other requirements and/or remedies, not all of which are addressed herein. Because of space limitations it is impossible to cover every contingency. You should consult a knowledgeable attorney for specific information related to your case.
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William J. Sweeney
Attorney at Law
Telephone: (916) 786-2011