Frequently Asked Questions

What you need depends on whether you have children, a business, health problems, Special Needs people in the family, relatives that you hate (!), war time veterans, or other unusual needs.

DO NOT DIE without at least a Will. DO NOT GET OLD OR SICK without a Power of Attorney and an Advanced Health Care Directive.

Most people will benefit from a Living Trust, coupled with a "pour over" Will (it pours your stuff over into the Trust -- I did NOT invent that name myself). A Trust allows you to plan your estate without it going through the Probate process after your death (even a modest estate without a lawyer's help will cost you $1,000 in court fees; probate fees to attorneys then start at 4% of the gross estate).

Any estate planning attorney can help you with your needs. The combination of tax, trust, inheritance, probate and government help programs make it a bit complicated for most lawyers (even if they don't think so).

A trust is used to plan to keep Medi-Cal from taking back the money they paid on your behalf after you die. Medi-Cal will pay your nursing home if you cannot afford it (maybe), but once you are both deceased (you and your spouse), Medi-Cal wants the money back from your estate rather than letting you leave it to your children.

Qualifying for Medi-Cal is a different problem than protecting your assets from payback. Qualifying requires that you have limited assets. It also calls for 30 months advance planning, so you cannot wait until someone has a stroke or is already suffering from dementia. To make sure you will qualify for Medi-Cal to pay your nursing care you need an irrevocable trust instead.

Any estate planning attorney can help you with your needs. The combination of tax, trust, inheritance, probate and government help programs make it a bit complicated for most lawyers (even if they don't think so).

There is no requirement to register a Will or a Trust generally. Some special Trusts are registered with the federal government but only for people receiving government aid who need their Trust inspected. A person can register them with the County Clerk but this is so rare that the clerks just give you a confused look.

If you cannot locate the Will or Trust, then it is time to play Sherlock Holmes.

Can you figure out who the lawyer was? A bit easier in a small town of course, but you might try calling estate planners' offices and asking them. An ad in the lawyer newspaper or magazine for your county might find the attorney who wrote it.

Are you sure there was one? Go to your county clerk's office and look up the deed to any real estate that the deceased owned. If it is deeded in the name of the Trust then at least you know one existed.

Banks and brokerage houses often require a copy of the Trust, or at least a Certification of Trust, in order to open an account. See if any of the deceased's bank or brokerage accounts were in the name of the Trust and see if they have a copy on file.

If the real estate and bank/brokerage accounts aren't registered in the name of the Trust, then they don't belong to the Trust. That makes the Trust powerless to control those assets so the Trust no longer is important to the heirs. If you cannot find a Will or a Trust then you are stuck with intestate probate procedures.

The Court appoints a Conservator for adults who are unable to make their own decisions. This is usually kids who are autistic (or have other developmental disabilities) as they turn 18, or the elderly who develop dementia or who lose consciousness. There is no way to avoid Conservatorship for the developmentally disabled.

For the elderly, you need to have made the decisions before you were sick, and made out a Power of Attorney to assign someone to take care of your business decisions for you. The Power of Attorney can be made to allow as much or as little power to this person as you choose. It can also be limited to only be valid if you are incapacitated (called a Springing Power of Attorney) so that you don't have a dangerous document floating around giving someone power over your life.

While you are making out documents, don't forget to also do an Advance Health Care Directive. This declares who can make your medical choices for you if you are not capable yourself. A good idea is to execute a HIPPA release also so that person can see your medical records.

Give copies to the person/people that you are putting in charge.

Any estate planning attorney can help you with your needs. The combination of tax, trust, inheritance, probate and government help programs make it a bit complicated for most lawyers (even if they don't think so).

The ABLE account and the Special Needs Trust are very similar. They are a piggy bank for a Special Needs person that the government pretends that it doesn't see when deciding whether or not that person qualifies for government aid. The downside is that there are limits on what the money can be used for, and at the end of the Special Needs Person's life, the government gets to keep whatever is left in the piggy bank.

Which one is better? Well, the ABLE account is easiest but there are limits of how much money you can put in, and you fund it today with today's money. The Special Needs Trust is handy because you can make it part of your estate plan and it will be funded after your death with whatever money you did not spend on easy living and fine wine. This also works especially well for parents of developmentally disabled children because it provides money at the same time as the parents' death.

Any estate planning attorney can help you with your needs. The combination of tax, trust, inheritance, probate and government help programs make it a bit complicated for most lawyers (even if they don't think so).

A Living Trust is basically a fancy way to write your Will. It allows you to avoid the expensive and lengthy process of Probate (where the Court supervises the distribution of your assets), while providing some asset protection from nursing care costs paid by the government on your behalf. It also allows you to haunt your heirs from beyond the grave, directing how the money you left them can be spent!

The Living Trust is like a box - you put things in (like your house, or your bank account), and you take them out all you like.

An Irrevocable Trust is like a treasure chest. You take your assets and put them in the treasure chest, and then you give away the key. Ouch. This is useful for protecting assets if you are in a profession that gets sued a lot, and for making assets not count when the government is deciding if it will pay for your nursing home care (although that takes a bit of planning). If you put your money in the treasure chest (for long enough and the right way), then the government will see you as poor and will (probably) cough up most of the $10,000 per month to keep you in a nursing home.

With the Irrevocable Trust, you really have given away your assets. You cannot retain any control over them at all and only the Trustee (not YOU) can decide to give you money from the Trust. The one saving grace is that you can retain the power to fire Trustees and still keep all the benefits of the Trust.

Any estate planning attorney can help you with your needs. The combination of tax, trust, inheritance, probate and government help programs make it a bit complicated for most lawyers (even if they don't think so).