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Wills and Trusts

Information Sheet

When preparing for the future and how to determine the most optimal Estate Plan, it is essential that you possess an in-depth understanding of the difference between your numerous choices. A seasoned Wills & Trusts Lawyer, Attorney Gregory Annigian has been helping clients devise personalized Estate Plans for more than 47 years. Claremont Estate Planning Lawyer

Whether you choose to devise a will, a trust, or a combination thereof, it is crucial that you retain a trusted lawyer who has been providing knowledgeable and skilled legal counsel. Contact the Law Offices of Gregory T. Annigian at (909) 981-9340 to make an appointment for a personal consultation with a highly respected Wills & Trusts Attorney.

The Difference between Wills & Trusts

Wills and Trusts provide numerous ways to determine how and when assets will be transferred to your designated heir and / or beneficiaries. However, they work in highly different ways and serve different purposes that can significantly impact your decision-making.

Wills are utilized to set forth who will receive your assets upon death, as well as the name of a chosen executor who has to carry out specific duties to ensure that your wishes are met.

There are two primary differences between wills and trusts: Wills must go through Probate Court and are a matter of public record. Trusts are private documents that allow for the distribution of assets by a named trustee without having to go through probate.

Probate in California is an expensive process, as it requires the Court to determine the validity of a will and oversees the distribution of assets. This is not only costly, but probate may also take several years based on the complexity of the estate. Additionally, if you wish to name a guardian for your children, this must be incorporated into a will. This cannot be done by executing a trust.

Trusts may be utilized to hold assets during your lifetime, distribute assets during your lifetime, and control how assets are to be distributed. While specific types of trusts may be implemented immediately, wills do not go into effect until death.

A comprehensive Estate Plan may make use of both devices based upon your unique familial and financial situation.

Types of Wills in California

The state of California legally recognizes three distinct types of wills: Holographic Wills
Formal (Attested) Wills
California Statutory Wills

Holographic Wills must meet several requirements to be found valid by the Probate Courts. These wills must be written by the drafter’s own hand, free from duress. The testator must be of sound mind, and must clearly state their intent that the document act as their Last Will and Testament.

Formal / Attested Wills are those which are signed by the testator in front of either two or three witnesses. The will must include a clause that the testator is of sound mind and intends to execute a will. It must also be signed in front of witnesses and dated.

California Statutory Wills are pre-printed forms in compliance with state probate laws. The testator fills in the blanks with the pertinent information, and they must be signed in the presence of at least two witnesses. As with formal wills, statutory wills must include an attestation that the signatory is of sound mind and intends to execute a will. They must be dated and are signed under penalty of perjury.

Finally, there is a fourth type of will called a Pour-over will that is typically utilized in conjunction with a living trust. These wills contain clauses that transfer the testator’s property into a revocable trust. Pour-over wills are only valid if they reference a trust executed either prior to the will, at the same time or within 60 days of the execution of the trust.

Probating Wills

As discussed above, Probate is a timely and expensive process and often requires the assistance of experienced legal counsel to help streamline the case before the court. Upon the death of the testator, the will must be filed with the Probate Court. At this point, the court will determine the validity of the will. To demonstrate the will’s validity, the court must determine that the testator:

Intended to execute a will
Understood that they were doing so
Possessed the mental capacity to execute a will
Signed the will by their own choice
Was not under duress at the time
Was not unduly influenced

With the exception of Holographic Wills, they must be dated and witnessed by independent third-party witnesses who don’t have a personal interest or stand to inherit under the will.

An executor will be assigned by the court if the decedent either did not name an executor or if the named executor is unable to carry out his or her fiduciary duties. If the will is deemed invalid, the court will look to see if the decedent had a prior valid will. If so, the terms set forth in that will are going to be carried out. If not, the decedent’s assets will pass via California’s laws of intestacy (meaning there was no valid will left behind).

Probate is not necessary if the decedent’s assets were owned with another in joint tenancy with the right of survivorship, if all of the decedent’s assets are to pass via the state’s community property laws, or if the will is incorporated as part of a living trust.

Trusts Recognized under California Law

There are numerous types of trusts, all designed to serve different purposes. In the state of California, trustors (individuals for whom a trust is drafted and funded) have several Estate Planning options to utilize to ensure that their wishes are carried out. Some of the most common trusts include:

Charitable Trusts
Educational Trusts
Irrevocable Trusts
Life Insurance Trusts
Living Trusts
Special Needs Trusts
Spendthrift Trusts

Because each trust serves a different purpose, it is imperative that you contact a highly experienced Wills & Trusts Attorney who can thoroughly review all of your Estate Planning options and help you decide on your best course of action.

A knowledgeable Wills & Trusts Lawyer will understand the tax ramifications of each and work to educate you so you are able to make the most informed choices possible when determining how you want to pass on your assets.

Trust Administration

The administration of any type of trust requires the trustee (the individual assigned to oversee carrying out the terms of the trust and the testator’s intent) to take very specific actions to comply with their duties.

Trustees are obliged by their fiduciary duties to the beneficiaries to take steps to protect the trust’s assets. This includes identifying all assets, obtaining appraisals, opening bank accounts and distributing assets in accordance with the trust. Special trusts, such as spendthrift trusts, have different requirements that must be met; otherwise the trustee may be found in breach of his or her duties.

Hiring a Wills & Trusts Lawyer

Many people try to draft their own wills, trusts and other estate planning documents such as durable powers of attorney. However, there are many complex legal requirements that must be met to ensure that the decedent’s true wishes are actually carried out. Failure to do so often results in litigation between the heirs / beneficiaries themselves or the executor or trustee.

Due to the complexity of administering trusts, it is especially prudent to hire a professional to handle the matter for you. Claremont Attorney Gregory T. Annigian has been assisting trustees in fulfilling their legal duties and obligations for more than 47 years. Call (909) 981-9340 for a consultation to see a lawyer today near you.

The Law Offices of

Gregory T. Annigian