We all want to make the best possible decisions to protect our loved ones and determine what happens to our property after we die.  But what happens if you die suddenly, or fail to prepare the proper documents before death?  Generally, the law will make those decisions for you, based on what the legislators in the government believe you would want to happen.  Most of the time, the court system will determine what it considers to be in the best interest of your minor children and who should take custody of them.  Legal statutes will decide how to pass your property to your closest living relatives (California Probate Code §6400 et seq.).

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    Additionally, without a will and a trust, your estate (the property that belongs to you) will be decided in a public and open court case known as a probate.  In a probate action, the court will take numerous steps to appoint an administrator (the person charged with cataloging, valuing and ultimately distributing your property) to administer the estate.  The probate process is time consuming, and public, meaning your personal information, including your assets will be placed in a court file accessible to the public.  By law, the administrator and the attorney for the administrator is entitled to a fee based upon the value of your estate (California Probate Code §§ 10800-10801), plus all of the filing and other fees associated with a probate action.  All of these fees diminish the amount of money you can pass to your heirs.  In short, if you die without a will and a trust, you will lose control of key decisions you have the right to make, and your heirs will have to go through a public, timely and costly probate, often delaying their inheritance for a significant amount of time—all with full court oversight.

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    However, there is a method to avoid all of this, the preparation of an estate plan by an experienced, licensed attorney.  If done properly, a will and trust will avoid the probate process all together.  All of the negatives of probate can be avoided with the proper documentation.  You will have full control of your assets, deciding who you want to receive your property.  Did you always want your nephew to have the grand piano?  Do you want to pass a special piece of jewelry to a specific child?  A proper trust and will prevents the court from determining who inherits your property, often preventing family disputes after your death.  Control is just the first benefit, naturally, you avoid a time consuming, public and expensive probate.  With a will and trust, there are no probate fees or attorney fees.  With a will and trust, your documents and assets will not be placed in a public court file for the world to see.  With a will and trust, your beneficiaries in most cases will receive their inheritance far sooner than having to go through a full probate with court oversight.

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    There are many other benefits to estate planning.  Schreiber & Schreiber offers free consultations allowing you to speak with a licensed attorney to discuss the many benefits of preparing your estate plan to protect your loved ones.

Eric A. Schreiber is a partner of the law firm of Schreiber & Schreiber, Inc., and is a licensed California attorney (SBN 194851).  This article is for informational purposes only and should not be construed as legal advice or the creation of an attorney-client relationship.  Copyright 2020 all rights reserved.

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