Estate Planning in California
By: Rafael Ruano, Esq. and Caitlyn Andrijich, J.D.

Estate planning is not just for the wealthy. Everyone can benefit from having an estate plan, regardless of the size of their estate. If you have any assets at all, it’s important to have a plan in place so that your loved ones know what to do with them in the event of your death. 

Creating an estate plan doesn’t have to be complicated or expensive. A basic estate plan can be created relatively easily and can be updated as your needs change over time.

At a minimum, your estate plan should include a will. A will is a legal document that stipulates how you want your assets to be distributed after your death. If you die without a will, your assets will be distributed according to state law, which may not be in line with your wishes.

To avoid any painful or awkward situations for your family, it’s important to do your estate planning in advance, so that your wishes are known and carried out. A licensed estate planning attorney can help you create a comprehensive estate plan that meets your unique needs and ensures that your assets are distributed according to your wishes.

Here are some estate planning tips to keep in mind as you enter this process.

PROBATE?

If you die without an estate plan, it is likely that your estate will need to go through probate.  A probate is a judicial process to administer a decedent’s estate.  The average probate process takes one-year to complete and costs several thousands of dollars in attorney’s fees and court costs.  Instead of spending thousands of dollars from your estate, you can preserve your assets for your family with a simple estate plan.

Without the proper documents, your loved ones will require court approval to handle your affairs. In California, if you own a home or have assets whose total value is greater than $150,000, your family will likely be subject to a probate process to gain access to your estate and distribute your assets upon your death.  However, a living trust can help avoid these issues upon your death.

INTESTATE SUCCESSION?

The heirs of your probated estate are determined by intestate succession.  Intestate succession is the order in which your heirs may inherit from your estate and it is determined by statute. The purpose of the intestate statute is to determine which individual(s) are entitled to a share of your estate, which was not disposed of by Will. An “heir” means any person, including the surviving spouse, who is entitled to take property of the decedent by intestate succession under this code. (Cal. Prob. Code § 44). Your intestate heirs are usually spouses, children and/or relatives.  If you do not leave any heirs, your estate will escheat to the state.

Therefore, intestacy statutes govern the disposition of a decedent’s estate who died without a Will and who did not dispose of his or her estate by trust. In California, even if you have a Will, it is likely that your estate will need to go through probate, but you can choose your beneficiaries.  The only way to avoid probate, when your estate would require a probate, is by setting up a trust.

UPDATE YOUR BENEFICIARIES ON YOUR ACCOUNTS

When you pass away, bank accounts, life insurance policies, retirement accounts and investment accounts will be payable directly to your beneficiaries. It is important to properly fund your trust after you execute your trust documents.  In other words, you need to properly transfer the title of your assets into the name of your trust or designate beneficiaries on those accounts.  This step can be crucial especially when spouses pass away or after a divorce. In addition, the failure to execute this step of your estate plan may cause your assets to require a probate process in the courts. Goyette & Associate’s estate planning attorneys can help you each step of the way to ensure you properly execute your estate plan and complete the funding of your trust.

HOW TO EXECUTE YOUR ESTATE PLAN DURING COVID -19 AND SHELTER IN PLACE ORDERS

We are living in a new world with COVID-19, however, the importance of completing your estate plan has become a more pressing issue.  Most estate planning documents require a notary acknowledgment.  In California, notaries are required to be in the physical presence of the signer.  Since March of 2020, California was placed on Shelter in Place Order, which has interrupted our usual process of scheduling appointment to execute your documents either at your home or in our office.

Other states use Remote Notarization, which is not yet available in California by California notaries.  A Remote Notarization is a process for notaries to perform a notarization through web camera on emailed or scanned documents. Some states are offering Remote Notarization, in which a California resident can hire an out-of-state notary to perform a Remote Notarization. Remote Notarizations are not necessarily the answer for all your estate planning needs.  If you own a home, we would transfer the title of your home into your name(s) as trustee(s) of your trust.  This transfer would need to be recorded with your County Recorder.  All County Recorders in California require original signatures of both the signer and notary in order to record a transfer of real property.  Some exceptions may apply to realtors or title companies.

So what does that mean for your estate plan?  We can still help you get your estate plan completed. We are continuing to schedule telephone consultations where we will go over your estate planning worksheet and the details of your estate plan custom to your needs and wishes.

We will then send you drafts of all your estate planning documents so that you can thoroughly look through each document in the comfort of your home.  We can send you these drafts by email so there is no contact at all with your documents. Once you review your documents, we can discuss your questions, concerns and changes over the phone.

We can send the documents to you and try to find a mobile notary near you or we can schedule an appointment in anticipation of the quarantine lifting. Schedule an appointment to discuss how we can help you execute your documents in a safe stress-free environment.

Goyette & Associates always offers a free estate planning consultation.

Contact Goyette & Associates at (888) 993-1600 or [email protected].