By: David L. Crockett, Attorney, CPA
UCLA Law School , J.D. ’69, UC Berkeley ’66
901 Dove St., Ste 120, Newport Beach, CA 92660
WHAT YOU SHOULD EXPECT WHEN ALL IS SAID AND DONE?
You should end up with (a) custom prepared, understandable, and legally enforceable documents that will plan the future of your trust estate/assets and (b) proper bank and securities accounts and real estate transferred into your trust.
Step #1: Read some website articles and blogs about estate planning, wills and living trusts. This will educate you about the basic terminology.
Step #2: Consult with an attorney who practices in the trusts and estates area. Some attorneys offer free consultation to help you obtain an idea of what you need to avoid probate and satisfy your estate planning objectives. Do you actually need a lawyer or can you prepare your own estate plan? That is up to you to decide but a lawyer consultation will give you more information to help you decide. An estate planning attorney should be able to advise you about income taxes, property taxes and estate taxes which may affect how you set up your estate plan. The downside of not having an attorney prepare your estate plan is that essential topics and decisions may get overlooked with could lead to expensive court litigation and higher taxes later on.
Step #3: Have an initial meeting with the attorney which you select to discuss what you want to do with your money and property and who is to get what and when. At the initial meeting, the attorney should be able to explain your various options. Such a discussion would involve your Wills, a possible Trust, deeds, possible powers of attorney, health care directives and possibly other legal documents needed. Also, you and the attorney need to agree on what the attorneys fee charges will be and when they will be paid. Attorneys fees for estate planning are typically either a fixed fee or an hourly fee based upon the time spent to prepare everything.
Step #4: Provide your basic family and asset information to the attorney so an initial proposed (draft) set of documents can be prepared. Most attorneys will have forms and checklists for you to fill out. Typically this can be emailed to the attorney and there may be various emails back and forth to obtain needed information. Also, you will need to provide the attorney with a specific list of what property and what bank and securities accounts you want to place into the trust.
Step #5: The attorney will prepare and send to you an initial set of the proposed docu-ments such as Wills, a trust, powers of attorneys, deeds and other items. These docu-ments will be custom prepared to fit your exact situation. When our office prepares the initial documents, each page will have diagonal markings stating:
“D R A F T 10/1/20”
The draft documents in pdf computer file form will be e-mailed out to you for review and comment.
Step #6: You will read the proposed/draft documents and let the attorney know if you have any questions or requests for changes or comments. Drafts will often contain blank spaces where necessary information can be added later. An example of that is if you are not sure initially who you want as your executor or successor trustee then blanks would be left in the documents to add that later. The attorney typically would be available to discuss the proposed/draft documents and discuss various alternatives. While the first draft will typically get most of what you want, clients often change their minds about various things and/or want to take some time to consider alternatives. Even the most basic estate in California contains hundreds of thousands of dollars in accounts and property values and it can take a few tries and discussions to plan it all out and make sure you have legally enforceable documents. Also, you and the attorney need to fully understand what the income tax, property tax, and estate taxes (if any) will be when you pass away as the taxes can be different depending upon how the trust or estate plan is set up.
Step #7: After all questions are answered and all blanks filled in, the attorney will pre-pare and send you a proposed final set of documents to be signed. An appointment for signing will be set.
Step #8: You will meet with the attorney to sign everything and have signatures witnessed and/or acknowledged by a notary public. The meeting is typically at the attor-ney’s office but could be elsewhere if circumstances such as hospitalization prevent you from coming to the attorney’s office. The attorney will then make Xerox copies of everything and scan all documents so there is a permanent computer record. You will then take the originals of all documents with you for safekeeping except for any deeds which you have signed.
Step #9: If there is any real estate to be placed into your trust the attorney will arrange to have the deeds which you signed sent to the county for recording in the county land records. After the recording, the county will mail the originals of all deeds to you. Along with the deeds, there will be other county-required forms such as preliminary change of ownership forms which the attorney has prepared.
Step #10: The last thing to be done is for you to personally transfer your bank and securities accounts into your trust. This is known as “funding your trust”. Your estate will not avoid probate unless your trust is funded. You will need to contact your banks and security companies (stockbrokers) and explain that you now have a trust and that you want certain accounts transferred into your trust. They will each have their own forms and new account signature cards which you will need to sign. Your attorney may have more specific instructions about the funding of your trust and how to fund various assets and accounts into your trust.
For the future: Remember that your trust will most likely be amendable and changeable so if there are significant life-changing events you may want to amend. Also, if someone passes away who is mentioned in the trust, you should call your attorney to determine if any legal steps need to be taken and/or documents prepared or changed. If one of the persons creating the trust passes away, there will need to be trust administration. Your trust will have a section about what needs to be done on the death of one of the trust creators. An attorney should be contacted upon the death of a trust creator to read the trust and advise as to the exact legal steps needed for the trust administration.