Monday, 25 July 2016 02:02

Divorce and Estate Planning

Divorce and Estate Planning

 

What happens to your Estate Plan if you get a divorce?

 Divorce is a mess.  I know first-hand.  There are several things you should consider after some of the smoke clears.  If you don’t have an estate plan, now would be a great time to get it done.  If you do have an estate plan, you will want to make some changes.

 

California has a law that after divorce, any gifts in your Will to your now ex-spouse are revoked.  Even so, it is best to create an entirely new Will.  One of the reasons is that your Will is used to name a guardian for your children.  If you have children with your ex-spouse, and barring any ruling to the contrary, if one spouse dies, the court will most likely award the surviving spouse custody.  In the event that both parents are unavailable, your designation of a Guardian may control who raises your children depending on the circumstances.  You will also want to change the Executor and Beneficiaries named in your Will.

 

 

Be Active, Be Through

 Some things to consider:

  • First and foremost, talk to an Estate Planning Attorney like myself
  • Re-do your Will
  • Re-do your Revocable Living Trust
  • Change the beneficiary on the various accounts you own where you’ve named your now ex-spouse as the beneficiary such as:

 Life Insurance

Power of Attorney

Health Care Power of Attorney (also called an Advance Healthcare Directive)

Retirement accounts

Bank accounts

  • Check your vehicle titles
  • Check your deeds to any Real Property

 

 

As I said before, divorce is a mess.  I can help you clean-up your estate plan and help you get these things behind you so that you can move forward with your life.

 

Please feel free to give me a call today and we can review your situation and Estate Plan goals.    

 

See lots of estate planning information on my website at: www.myestate-plan.com

 

 

William Daniel Powell (Dan)

619-980-2297

This email address is being protected from spambots. You need JavaScript enabled to view it.

 

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This document is for informational purposes only.  Nothing in this is to be considered legal advice.  Nothing in this shall create an attorney/client relationship, nor shall it create a confidential relationship.  If you need legal advice (in California), feel free to contact me or someone licensed to practice in your jurisdiction.  I assume no liability or responsibility for actions taken, or not taken, as a result of reading this information

Also, please remember that I speak in generalities in my blog and my website. There are so many different factors that can contribute and completely change the outcome that it would be impractical to discuss all of them here.

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Monday, 04 July 2016 22:01

Happy Fourth of July 2016

Happy Fourth of July 2016

 

The Fourth of July is probably my favorite holiday other than Christmas.  It is a great time for all of us to reflect upon the founding of this great nation, this wonderful republic, this great experiment. 

 

It sounds kind of strange to think of the founding of this nation as an experiment, but it certainly was.  Never in the history of the world has a nation founded on the principals that the United States was founded on been tried.  As a matter of fact, it is the manner in which we were founded that allows us to create an estate plan in the first place.  We have property rights in this country.  These property rights allow us to manage and dispose of our property how we see fit.  That sounds basic and simple to us, but please remember that this is the EXCEPTION to the way it was in most of the world. 

 

You can read my blog on the Constitution and the Declaration of Independence here.

 

I thank God that I was born an American.  I believe America is exceptional.  I believe our best days are ahead of us.

 

 Please feel free to give me a call today and we can review your situation and other Estate Planning goals.  Everyone’s situation is different, and I can help create solutions. 

 

See lots of estate planning information on my website at: www.myestate-plan.com

 

William Daniel Powell (Dan)

619-980-2297

This email address is being protected from spambots. You need JavaScript enabled to view it.

 

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This document is for informational purposes only.  Nothing in this is to be considered legal advice.  Nothing in this shall create an attorney/client relationship, nor shall it create a confidential relationship.  If you need legal advice (in California), feel free to contact me or someone licensed to practice in your jurisdiction.  I assume no liability or responsibility for actions taken, or not taken, as a result of reading this information

Also, please remember that I speak in generalities in my blog and my website. There are so many different factors that can contribute and completely change the outcome that it would be impractical to discuss all of them here.

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What shouldn’t I put in my Living Trust?

 

Automobiles

I don’t recommend putting your automobile into a Revocable Living Trust mainly because if you should get into an accident, and the other person sees that your car is owned by a Trust, they may think you are wealthy and look to sue in a situation where they otherwise would not.

Now, if you own a classic car, hot rod, or other collectable car that you plan on keeping for a long period, then it makes more sense to put the auto into the Trust.  Usually these types of cars are not “daily drivers” and pose less of a risk of lawsuit like discussed above. 

  

IRA’s and 401(k)

IRA and 401(k) accounts present a specific problem if we try to put them into a Living Trust by changing the title of the asset.  The problem is that doing so creates a “taxable event” and too much of the value of the IRA will be lost to taxes.  Not good.  So what do we do with IRA’s?  The question depends on your situation.  If you are married, likely the best solution is to name the spouse as the beneficiary (and not a Trust).  If you are not married, then a beneficiary designation can still be utilized to pass the asset on to someone else such as a child.  Another method is to name a specially designed Trust called a Standalone Retirement Trust (or SRT) as the beneficiary.  Using a Standalone Retirement Trust provides some benefits to the beneficiary that an outright gift cannot.  Naming an individual as the beneficiary (and not a Trust) is considered an “outright gift” because once they are entitled to the funds, there is no control over how the funds are to be used (provided they are over 18 years of age).  They get the lump sum and off they go.  You can see how this can be a bad situation for the young, those bad with money, those subject to predators, or even those bad marriages!  In a recent case called Clark v. Rameker, the Supreme Court held that an inherited IRA cannot be shielded from creditors or bankruptcy.  This is why a Standalone Retirement Trust can be so beneficial.  There are other tax advantages to using a SRT that I won’t go into here, but in a nutshell, the distribution may be able to be streached out and keep the beneficiary in a lower tax bracket, and provide opportunity for the IRA to continue to grow. 

  

Other items that shouldn’t go into your Trust

There are other items that should not go into your Living Trust that I won’t cover here.  Please check my future blogs for possible discussion of these items (or of course consult an attorney!)

Please feel free to give me a call and we can review your Estate Planning goals, or start your Estate Plan today!

 

See lots of estate planning information on my website at: www.myestate-plan.com

 

Thanks for reading.

 

William Daniel Powell (Dan)

619-980-2297

This email address is being protected from spambots. You need JavaScript enabled to view it.

 

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This document is for informational purposes only.  Nothing in this is to be considered legal advice.  Nothing in this shall create an attorney/client relationship, nor shall it create a confidential relationship.  If you need legal advice (in California), feel free to contact me or someone licensed to practice in your jurisdiction.  I assume no liability or responsibility for actions taken, or not taken, as a result of reading this information

Also, please remember that I speak in generalities in my blog and my website. There are so many different factors that can contribute and completely change the outcome that it would be impractical to discuss all of them here.

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Monday, 20 June 2016 20:13

Does my Car go into my Living Trust?

Does my Car go into my Living Trust?

 

Technically speaking, your automobile can go into your Revocable Living Trust, but I don’t usually recommend it.  I don’t usually put cars into Trusts for two reasons.  The first is that we tend to buy and sell cars more frequently than other “big ticket” items.  The second and more important reason is that should you get into an accident and the other party sees that your car is owned by a Trust, they may see dollar signs and look to sue in a situation where they otherwise may not.  Generally, people (married people) tend to keep their cars in both spouse’s names, so transferring the car is not difficult.

 

There is an occasion that I would recommend putting an automobile into a Living Trust, and that is when someone owns a special car such as a collector car, classic car, hot-rod, or other car that they plan on keeping for life.  

 

Please feel free to give me a call and we can review your Estate Planning goals, or start your Estate Plan today!

 

See lots of estate planning information on my website at: www.myestate-plan.com

 

Thanks for reading.

 

William Daniel Powell (Dan)

619-980-2297

This email address is being protected from spambots. You need JavaScript enabled to view it.

 

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This document is for informational purposes only.  Nothing in this is to be considered legal advice.  Nothing in this shall create an attorney/client relationship, nor shall it create a confidential relationship.  If you need legal advice (in California), feel free to contact me or someone licensed to practice in your jurisdiction.  I assume no liability or responsibility for actions taken, or not taken, as a result of reading this information

Also, please remember that I speak in generalities in my blog and my website. There are so many different factors that can contribute and completely change the outcome that it would be impractical to discuss all of them here.

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What Does the Typical Estate Plan Include?

 

Well, let’s start with discussing what a “typical” estate plan is, and is not.  The fact is that there is not really one typical estate plan as everyone’s situation is a bit different.  There is a fairly common set of circumstances that creates a “typical” estate plan, and usually covers most people.  However, there are several situations that require special estate planning, and push some people out of the more typical estate plan.

 

 

Special Estate Planning to Avoid the Federal Estate Tax

 

Most of us don’t have assets that would push us into the realm of needing to worry about federal estate tax.  If you have assets that meet, exceed, or will exceed the Federal Estate Tax Exclusion amount, then you will likely want some non-standard estate planning.  For the year 2016, the Federal Estate Tax Exemption is $5,430,000 for an individual, and $10,860,000 for a married couple.  This means that an individual can leave $5.43 million to their heirs and no Federal Estate Tax will be imposed, and a married couple can leave $10,860,000 to their heirs without worrying about triggering the Federal Estate Tax. 

 

 

Special Estate Planning Required for Other Situations

 

Some other situations that generally require special estate planning include those adults with special needs, or those with children that have special needs.  A Special Needs Trust is used to ensure that those receiving means-tested public benefits don’t become disqualified by receiving an inheritance or other income. 

 

Another familiar situation is where there is a “blended family”.  In these situations, there is a couple or person with children from a previous marriage.  Their desire is to make sure their child or children receive an inheritance.  A married couple with a “standard” Joint Revocable Living Trust is set up in such a way so that the first spouse to pass leaves everything to the surviving spouse.  As you can imagine, in a blended-family situation, the surviving spouse is free to change the distribution scheme and leave the entire estate to whomever he or she wishes.  An A/B Trust prevents this by becoming irrevocable upon the passing of the Trustor that dies.

There are other “non-standard” situations that I won’t discuss here for the purpose of brevity.  If you have questions, please contact me, or an attorney licensed in your jurisdiction.

 

 

So get on with It!  What is in a Typical Estate Plan?

 

Okay!  So for the vast majority of us, and especially those of us in San Diego, the typical Estate Plan includes:

  • If you are single, it includes a Revocable Living Trust (sometimes called an Inter Vivos Trust, Living Trust, or even perhaps just a Trust)
  • If you are married, it includes a Joint Revocable Living Trust
  • A Pour-Over Will
  • Power of Attorney
  • An Advance Healthcare Directive (sometimes called an AHCD, or AHD)
  • It also includes a HIPPA release
  • A Certification of Trust
  • Trust Summary
  • The funding of the Trust with the family home

 

So as you see, it can be a bit different for each person.  Call me today and let’s get your plan together and get you some peace of mind!

 

Please feel free to give me a call today and we can review your situation and other Estate Planning goals.  I help create solutions. 

 

See lots of estate planning information on my website at: www.myestate-plan.com

 

William Daniel Powell (Dan)

619-980-2297

This email address is being protected from spambots. You need JavaScript enabled to view it.

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This document is for informational purposes only.  Nothing in this is to be considered legal advice.  Nothing in this shall create an attorney/client relationship, nor shall it create a confidential relationship.  If you need legal advice (in California), feel free to contact me or someone licensed to practice in your jurisdiction.  I assume no liability or responsibility for actions taken, or not taken, as a result of reading this information

Also, please remember that I speak in generalities in my blog and my website. There are so many different factors that can contribute and completely change the outcome that it would be impractical to discuss all of them here.

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Tuesday, 14 June 2016 23:41

What Does Medicare Cover?

What Does Medicare Cover?

 

What is Medicare?  What does Medicare cover?

I can’t possibly tell you everything you want to know about Medicare, or all of the options.  What I can do is provide a bit of a birds-eye view or summary about some of the pertinent parts of Medicare and how it relates to estate planning and long-term care.

 

The program is available to most people over 65 years old.  Medicare covers medical expenses, hospital care, and post-hospital care.  It also provides some coverage for prescription drugs under “Part D”.

 

Medical expenses:

Medicare covers 80 percent of approved qualified medical expenses and includes things like doctors and surgical services.

 

Hospital Care:

Hospitalization is covered for 90 days per “spell of illness” with a deductible for the first 60 days, and a co-payment of $315 per day for the remaining 30 days.

 

Post-hospital skilled nursing home care:

If the hospital stay is at least 3 days, and only of the post-hospital care needed is “skilled care”, Medicare will cover 100% of the costs for the first 20 days, and a co-pay of $157.50 per day for the next 80 days for a maximum of 100 days of care.  Availability is very limited. 

 

Does Medicare Cover Long-Term Care?

No, Medicare does not cover long-term care.  As described above, Medicare only provides some home care and it must be under very specific situations. 

 

Other Medicare aspects include (but are not limited to):

  • There are “gaps”, and private policies can be purchased to fill these gaps.  These are “Medigap” plans. 
  • Medicare doesn’t cover hospital costs beyond 150 days
  • Medicare doesn’t cover skilled nursing home costs beyond 100 days
  • Medicare doesn’t cover ANY custodial nursing home care or non-skilled home health care

 

Medicare Part D

Medicare Part D is an optional prescription drug coverage.  It is automatic in certain situations for certain people on Medicaid and others.  There are some co-pay rules and many twists and turns that I won’t get into here.   The enrolment period is 3 months prior to, and up to 3 months after your 65th birthday.  A person can only change their plan once a year.  There are also many different plans from which to choose that I won’t get into in this (or likely any) blog.  I simply wanted to provide a general background into Medicare.

 

Please feel free to give me a call today and we can review your situation and other Estate Planning goals.  Everyone’s situation is different, and I can help create solutions. 

 

See lots of estate planning information on my website at: www.myestate-plan.com

 

William Daniel Powell (Dan)

619-980-2297

This email address is being protected from spambots. You need JavaScript enabled to view it.

 

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This document is for informational purposes only.  Nothing in this is to be considered legal advice.  Nothing in this shall create an attorney/client relationship, nor shall it create a confidential relationship.  If you need legal advice (in California), feel free to contact me or someone licensed to practice in your jurisdiction.  I assume no liability or responsibility for actions taken, or not taken, as a result of reading this information

Also, please remember that I speak in generalities in my blog and my website. There are so many different factors that can contribute and completely change the outcome that it would be impractical to discuss all of them here.

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Do I Need a Living Trust? My Granddad’s Story

 

The phone on the kitchen pass-thru rang.  Granddad was in the hospital, had taken a turn, and this was the call we hoped didn’t come in.  It was quickly decided how many cars to drive to the hospital and as it turned out I drove myself there.  Hindsight being what it is, I should have ridden with someone because I may have fractured a speeding law while simultaneously setting a new land speed record in driving my Dodge Charger to the hospital in an emotional and horsepower fueled semi-panic.  Probably not the safest, but I was 18 years old and loved my granddad very much.

 

He never came home from the hospital and mom helped grandma with all that she could.  I remember asking my mom about what was next to come.  I felt bad asking if there was going to be a reading of the Will because I didn’t want to appear like I was interested in material things, but the reality was that I believed that was just how it happened.  I thought it was like how we see it happen on TV.  You know, sitting in a lawyer’s office, with wood paneling on the wall, and all the family sitting in chairs listening.  That’s not how it happens.  The reality was that there was very little estate planning in place, and my mom had to deal with most of the issues and red tape.  After things were cleared up, she told her mom that she really needed to create a Living Trust, and grandma agreed.

 

Have you had someone close to you pass away?  Aside from the emotional pain and distress this caused, if the loved one had no estate planning in place – no Will, no Revocable Living Trust, nothing – and you had to handle the affairs, I sure you realize what a mess this can create.  If you’ve never dealt with this, I’m sure you can learn from others.

 

I’ll give you an explanation of just one of the rewards of creating an estate plan beyond avoiding the mess that not having any estate plan creates, and that is avoiding the costs and time delay of probate.  Let’s say you have an estate worth $650,000.  That is not difficult to do living here in San Diego.  Let us assume that you have a home worth $500,000 and accounts and other property that values at $150,000.  Now with Probate, it doesn’t matter that you owe $10 for your home, or $400,000, the estate is still valued, and costs are still determined at the $650,000 number.  The statutory amount an attorney can charge is $16,000.  The Executor of the estate is also allowed to charge the estate for his or her services up to the statutory amount.  So in this example, another $16,000.  Excluding court costs and other costs, we can see that the cost of Probate for an estate valued at $650,000 is potentially $32,000.  Wow, that’s a lot compared with the few thousand dollars that an inter vivos living trust will cost you.  Plus, Probate usually takes a year or longer.  You can avoid all this loss very easily – create an Estate Plan today.  By the way, a Trust goes by many different names including Living Trust, Revocable Trust, Revocable Living Trust, Inter Vivos Trust, Inter Vivos Living Trust and others.  You can read more about the costs of Probate in my blog.

 

Please feel free to give me a call today and we can review your Estate Planning goals.  Everyone’s situation is different, and I can help create solutions to address your specific goals and your particular situation. 

 

See lots of estate planning information on my website at: www.myestate-plan.com

 

William Daniel Powell (Dan)

619-980-2297

This email address is being protected from spambots. You need JavaScript enabled to view it.

 

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This document is for informational purposes only.  Nothing in this is to be considered legal advice.  Nothing in this shall create an attorney/client relationship, nor shall it create a confidential relationship.  If you need legal advice (in California), feel free to contact me or someone licensed to practice in your jurisdiction.  I assume no liability or responsibility for actions taken, or not taken, as a result of reading this information

Also, please remember that I speak in generalities in my blog and my website. There are so many different factors that can contribute and completely change the outcome that it would be impractical to discuss all of them here.

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What is the difference between Medicare, Medicaid, and Medi-Cal?

In a Nutshell

In a nutshell, Medicare is a federal program that provides basic health insurance and prescription coverage to those 65 years of age and up, or those under 65 years old that are eligible for Social Security Disability benefits.  Medicare does not pay for long-term care.  Some skilled care is provided for a short time and if certain requirements are met, but it is not the norm.

 

Medicaid is a federal and state program that provides health care coverage for persons of all ages if they have a low income and limited resources.  The definition used is that Medicaid is a government insurance program for persons of all ages whose income and resources are insufficient to pay for health care.  Therefore, if you make over a certain amount of money, you won’t qualify for Medicaid.  Medicaid pays medical costs and long-term care costs.  Medicaid also has a right to seek reimbursement from the decedents estate for long-term care, and also for medical care costs.  There are several rules and circumstances involved, and will be discussed in another one of my blogs.

 

 

Medi-Cal is also a program that provides care to persons with low income and limited resources. It is what the federal Medicaid program is called in California, and is therefore essentially the same thing. 

 

 

All of these programs will be discussed in more detail in my blog posts.

 

Please feel free to give me a call today and we can review your situation and other Estate Planning goals.  Everyone’s situation is different, and I can help create solutions. 

 

See lots of estate planning information on my website at: www.myestate-plan.com

 

William Daniel Powell (Dan)

619-980-2297

This email address is being protected from spambots. You need JavaScript enabled to view it.

 

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This document is for informational purposes only.  Nothing in this is to be considered legal advice.  Nothing in this shall create an attorney/client relationship, nor shall it create a confidential relationship.  If you need legal advice (in California), feel free to contact me or someone licensed to practice in your jurisdiction.  I assume no liability or responsibility for actions taken, or not taken, as a result of reading this information

Also, please remember that I speak in generalities in my blog and my website. There are so many different factors that can contribute and completely change the outcome that it would be impractical to discuss all of them here.

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The Longevity Risk – Don’t Outlive Your Money, and Leave Some for the Kids – Part 2

  

What is the Longevity Risk?

 We have discussed what the “Longevity Risk” is in another blog, but it will serve us well to repeat the definition again.  Longevity Risk is the risk of living a long life, but needing so much personal care, such as assisted living or nursing care, that you outlive your money.  When this happens, all of the property and money you were hoping to give to your kids or others may be completely used up and gone. 

 

I Already Have an Estate Plan, Won’t That Protect My Assets?

 Not necessarily.  Many people I’ve run into in San Diego have created some kind of Estate Plan.  Most of the time the Estate Plan will consist of a Pour-Over Will, a Revocable Living Trust, an Advance Healthcare Directive (or ACHD, or AHD), a Durable Power of Attorney (a DPOA or POA), a HIPPA (Health Insurance Portability and Accountability Act) release and some other documents.  That’s great, but that alone doesn’t provide asset protection.  As we get older our needs change.  For most of us our assets also change as we mature.

  

What Can I Do to Protect my kid’s inheritance?

 There are choices available to most of us.  Call me and let’s discuss options and we will see if we can keep the golden years golden.  Please see my Blog for more discussion on the topic of planning for the elderly and asset protection.

 

See lots of estate planning information on my website at: www.myestate-plan.com

 

Call today and let’s discuss your Estate Planning goals.  Thanks for reading my blog.

 

William Daniel Powell

619-980-2297

This email address is being protected from spambots. You need JavaScript enabled to view it.

 

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This document is for informational purposes only.  Nothing in this is to be considered legal advice.  Nothing in this shall create an attorney/client relationship, nor shall it create a confidential relationship.  If you need legal advice (in California), feel free to contact me or someone licensed to practice in your jurisdiction.  I assume no liability or responsibility for actions taken, or not taken, as a result of reading this information

Also, please remember that I speak in generalities in my blog and my website. There are so many different factors that can contribute and completely change the outcome that it would be impractical to discuss all of them here.

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Tuesday, 31 May 2016 01:58

Dave Ramsey Said I Only Need a Will

Dave Ramsey Said I Only Need a Will

First of all, let me start by saying that I respect Dave Ramsey.  Dave Ramsey, however, is not a lawyer, and he is certainly not a San Diego estate planning attorney.  Why is this relevant?  Well, Dave Ramsey quite often suggests that a Will is something that every person needs.  Moreover, he has said in his book that he thinks Trusts are unnecessary due to their cost of creation.  I agree with Dave Ramsey in that everybody needs some kind of estate plan whether that is a Will based plan, or Trust based plan.  A Will alone (or even in conjunction with the Living Will and Power of Attorney that Dave sells on his website) is not the one-size-fits-all solution that Dave Ramsey seems to suggest.  This is generally so because of the cost of Probate in California, and specifically so because of the cost of homes here in San Diego. 

 

Why can creating a Will cost more than creating a Revocable Living Trust?

Creating a Will based plan can cost almost as much as a Revocable Trust in certain situations, but it is generally a little more affordable.  A proper estate plan contains more than just a Will or just a Trust.  So much of the cost of creating a plan is the same in either option.  Also, if it takes 10 pages to dispose of items to those you choose, it will take 10 pages in a Will and 10 pages in a Trust, so the drafting time is very similar.  The real cost difference is in the cost of Probating a Will.  There is a link to one of my Blog posts above for you that details the cost of Probate in California.  The cost of a home here in California just means that the cost of Probate can go higher. 

 

So is a Will Based Plan Wrong?

No, I wouldn’t go so far as to say a Will based estate plan is always wrong.  For those with few assets, a Will may be preferred because they can take advantage of California’s simplified Probate procedure.  There are certain requirements for taking advantage of California’s Simplified Probate Process that you can read here.  But as I have stated before, a Revocable Trust centered estate plan is usually preferred to a Will because of the powers that a Living Trust provides such as:

  • A Trust is private where a Will is public record
  • A Living Trust helps you if you become incapacitated
  • Wills must be probated and the California Probate process costs time and money
  • Trusts allow for greater control over how and when the beneficiary is to receive property

 

Please feel free to give me a call today and we can review your situation and other Estate Planning goals.  Everyone’s situation is different, and I can help create solutions. 

 

See lots of estate planning information on my website at: www.myestate-plan.com 

 

Thank-you for reading.

 

William Daniel Powell (Dan)

619-980-2297

This email address is being protected from spambots. You need JavaScript enabled to view it.

 

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This document is for informational purposes only.  Nothing in this is to be considered legal advice.  Nothing in this shall create an attorney/client relationship, nor shall it create a confidential relationship.  If you need legal advice (in California), feel free to contact me or someone licensed to practice in your jurisdiction.  I assume no liability or responsibility for actions taken, or not taken, as a result of reading this information

Also, please remember that I speak in generalities in my blog and my website. There are so many different factors that can contribute and completely change the outcome that it would be impractical to discuss all of them here.

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