This article is not a substitute for, nor does it constitute, legal advice. Only an attorney who knows the details of your particular situation can provide you with legal advice.
Who needs an estate planning attorney?
I guess I could give the jerk answer and say “You do!” But that wouldn’t be fair or true. The necessity of hiring an estate planning attorney depends on what you want to accomplish. If you wish to avoid probate, limit your tax liabilities, protect your family once you are gone, and have all of your legal documents in order should you become incapacitated, you might need an estate planning attorney. As I discussed in my first blog post, it’s possible to do these things yourself. However, given the time involved and the high stakes, it’s always worth having a qualified estate planning attorney look over your estate plan to make sure you’ve covered your bases.
Attorney or Not, You Need a Will!
The most common time for a person to hire an estate planning attorney is when they are making a will. Without a doubt, a will is the cornerstone of any estate planning. But Grant, you say, “what of the living trust?” Of course I remain a strong proponent the living trust. But a will accomplishes two functions that a trust cannot: 1) A will allows you to make certain designations, such as guardianships of your children who are minors; and 2) A will allows you to put a “catch-all” phrase where any property that you may have neglected to put in your trust can still pass to whoever you want it to. If you don’t have a will, you may want an attorney to help you out. If you are going it on your own, here’s a link to the California simple will form: http://www.calbar.ca.gov/Public/SimpleWill.aspx.
Make Life Easy for Yourself and Your Loved Ones: Set up a Trust
Another great way an estate planning attorney can help you is with creating, managing, or ending a trust. A wide variety of trusts are available to the savvy individual: basic living trusts, ongoing trusts, charitable trusts, AB trusts, QTIPS, QDOTS… you get the picture. Each has its own unique advantages and disadvantages.
Not only can an estate planning attorney help you navigate these confusing waters, but also he can help you manage the trust once it’s created. Management of a trust has special considerations due to the fiduciary nature of the management. Understandably, many people have enough to worry about without stressing out about whether they have breached some seemingly nebulous fiduciary duty. Ending a trust also has its own processes and considerations.
Protect Your Kids and Your Family
An estate planning attorney can help you set up guardianships, conservatorships, and advanced health care directives. Each of these allows you to make decisions that are admittedly very difficult, like who should watch over your minor children when you are gone? Who should make decisions on behalf of your aging parents? Should you be kept alive with medical technology if you are completely incapacitated? The very fact that these are tough decisions indicates that you’re better off making them than allowing the government to step in and do so. An estate planning attorney can help you make sure that your wishes concerning your family are kept intact.
Protect Your Money
There are tons of ways you can protect your estate. Various methods to escape probate and estate taxes exist that you might not know about. Furthermore, there are lots of tricks of the trade to help you qualify for MediCal, keep ownership of your property in your family, and protect yourself from creditors. These will be discussed more fully in a later post. For now, all you need to know is that there are a lot of ways to protect your money and an estate planning attorney can help you with some of them.
Ahh probate, everyone hates it, except probate attorneys. This is a specific field of estate planning that has hyper-specific rules and procedures in place. If you find yourself in the unfortunate situation of needing an estate to be probated, you probably need an attorney to do it. Just so you know, California is one of the simpler states to do probate in and you may be able to figure it out yourself, just be careful as you open yourself up to lots of liabilities by doing probate on your own.
Hopefully this post has been useful to you. Feel free to e-mail me at Grant@ToeppenLaw.com if you have any questions, comments, concerns, or would like a free initial consultation (CA residents only).
The entirety of this article is copyrighted by Grant A. Toeppen, Esq., © 2012. Please send an email to Grant@ToeppenLaw.com if you would like to use this article in part or in its entirety.