The Shortcomings of a Will in California

The Shortcomings of a Will in California and the Power of a Living Trust 

By Attorney Paul Hanks of Ironclad Living Trusts 

There are many important distinctions which are important for the trust consumer to understand with regard to the shortcomings of a Will and the unique benefits of a Revocable Living Trust. 

Let’s address the power of a living trust with regard to real property, which can be a home, condominium, or vacant land). If you are a single person and own a home, then your home will be subject to a prolonged and costly probate proceeding if a Living Trust is not in place. In California, a Will by itself does not avoid the probate of a home, even if that Will is uncontested. For married couples, if there is only a Will in place, then upon the death of the first spouse a spousal petition may be required to be filed in the Superior Court that a Trust would avoid.  

Another benefit of a Living Trust over a Will is that a Trust allows for retention of an asset such as a home rather than its forced sale resulting from the need to cover the exorbitant court fees and costs. Probate fees and costs in California can approach or exceed $100,000 for a modest estate. 

A revocable living trust also contains provisions which address your incapacity and provide for the protection of your estate resulting from government funded services through Medi-care or Medi-cal. The troubling reality is that a very large percentage of the elderly rely on government funded medical benefits as they age, and their home can be the subject of an “estate recovery” upon their death unless proper planning has been done. 

Yet another added benefit of a living trust pertains to married couples. Only a living trust can provide you with the feeling of security in knowing that, after the death of the second spouse, your assets and wealth will eventually pass to your selected beneficiaries, and not end up with a stranger who you did not even know before the time of your death. Married couples often make a huge mistake thinking that their estate is secure for their next generation without a trust in place. The truth of the matter is that once the first spouse dies, if the home is not in trust then the surviving spouse can add anyone to the home’s title who they desire. 

For many reasons a living trust preserves the estate and maximizes its value for the next generation as it should be so preserved. If your children are your intended beneficiaries, the one final thing as parents that we owe them is not to leave a costly mess behind upon our death, and often the death of the first spouse is the point of no return if a marital trust has not been put into place. 

A Trust also contains conservatorship provisions for those of us who sadly require conservatorship, whether due to a head injury at a younger age, or the later-in-life onset of Alzheimer’s disease. A conservatorship proceeding can consume a decade or more of an ill person’s life at astronomical expense, however a Living Trust would serve to minimize that cost. 

As presented by this Blog, the consequences of improper estate planning are significant. Fortunately the trust consumer has the option to consult with an experienced estate planning law firm to properly assess their estate planning options.

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If you wish to speak with an experienced estate planning lawyer, please contact online or call us directly at (951) 648-2874. Ironclad Living Trusts is honored to serve clients throughout all of Southern California.