FAQs

WHAT IS ESTATE PLANNING IN CALIFORNIA?

 

California has statutes in place that dictate how a deceased person’s assets are distributed after his or her death and who has priority to be in charge of that distribution.  If the estate has a high enough value, the distribution will take place under the court’s supervision in a process known as “probate.”

California also has statutes in place that dictate who has priority for decision-making power over an incapacitated person’s medical care and a court process for individuals to obtain financial decision-making authority on behalf of incapacitated adults.

​

If you wish to deviate from California’s statutory scheme or if you want to avoid public court proceedings to determine the distribution of your assets or who can make financial decisions on your behalf, estate planning is the process by which you (and your attorney) prepare legal documents geared toward clearly expressing your wishes for who is entitled to your assets after you die, who will make decisions on your behalf in the event of your incapacity, and even who should take guardianship over your minor children in the event of your death.

​

Our estate plans are customized to your and your family’s situation and commonly include documents such as a trust, will, power of attorney for financial powers, advance healthcare directive, and deeds transferring title of your California real estate to your trust.  Other documents such as a transfer on death deed may come into play.

​

DO I NEED A WILL AND A TRUST IN CALIFORNIA?

 

The answer to that question depends on your priorities.  If your priorities include flexibility, control over the timing or nature of the distribution of assets or maintaining the privacy of your estate matters by keeping them out of court, a trust could be a cornerstone of your estate plan.

​

While a will allows you to clearly state and specify your wishes, larger estates will still need to go through the probate process if the will is the only estate planning tool the deceased person employed.  Probate and trust administration have many similarities.  The main difference is the level of oversight during the process itself.

​

Each situation is unique – your attorney can help you decide which estate planning tools to deploy to meet your personal goals.

​

WHAT IS PROBATE IN CALIFORNIA?

 

In short, probate is the court-supervised process of the distribution of a deceased person’s assets that can't be transferred to the beneficiaries without a court order.  The process includes validation of any will, identification of the deceased person’s assets available for distribution, identification of creditors and payment of outstanding debts, and, finally, distribution to the beneficiaries.

​

Probate works best if the beneficiaries and the personal representative in charge of "administering" the probate estate all get along.  If that will not be the case, estate planning tools can be used to prevent disputes.

​

DO ALL ESTATES GO THROUGH PROBATE IN CALIFORNIA?

 

No.  Small estates do not need to go through probate.  Common ways to remove assets from the probate estate calculation include holding assets in a trust, joint tenancy ownership structures, and naming beneficiaries.  California even allows for transfer on death beneficiary designations on real estate and business interests.

 

DO I NEED ESTATE PLANNING IF I DON’T HAVE MANY ASSETS?

 

Yes, estate planning is not just about asset distribution at death – though that may be an important consideration for you.  Estate planning allows you to grant decision-making authority in the event of incapacity, which is an important consideration for any adult over age 18.  If you are the parent of a minor child, estate planning allows you to nominate a guardian who will care for your child should you die before your child reaches age 18.  If you have a desire to plan and to make your wishes clear for a time when you are no longer able to communicate your wishes, you can benefit from an estate plan.

​

WHAT HAPPENS IF I DIE WITHOUT AN ESTATE PLAN IN CALIFORNIA?

 

California’s intestacy laws will dictate who inherits your estate and who has priority to administer the estate.  The estate may go through probate and these circumstances are ripe for challenge by people in your life who believe they were “promised something” during your lifetime.

​

DOES CALIFORNIA HAVE AN ESTATE OR INHERITANCE TAX?

 

California does not currently impose a state-specific estate or inheritance tax. However, federal estate tax laws may apply to larger estates.

 

WHAT IS A DURABLE POWER OF ATTORNEY?

A Durable Power of Attorney allows a trusted person to manage your financial affairs if you become incapacitated.  If a power of attorney for financial decision-making is not in place, a friend or family member may need to initiate court proceedings to obtain authority to make financial decisions for a loved one in a process called “conservatorship.”

 

WHAT IS AN ADVANCE HEALTH CARE DIRECTIVE?

 

An Advance Health Care Directive allows you to name a healthcare agent and state your medical wishes, including end-of-life decisions.  This document can bring clarity to your loved ones during difficult times by allowing you to be as specific as you want to be when it comes to your medical care.  In the absence of an Advance Health Care Directive, you will not have a say in who gets to make decisions or what decisions they will make on your behalf in the event of a serious medical emergency.

​

HOW DO I PROTECT MY MINOR CHILDREN?
 

Estate planning allows you to name guardians to care for children and their estates and, through the establishment of trusts, you can specify how, when, and under what conditions your minor children may access funds in the event of your untimely death.  Without these provisions, guardianship and control of funds may become contested by different family members and the result may be different from what you would want to happen.

​

CAN I DISINHERIT SOMEONE IN CALIFORNIA?
 

Most individuals can be disinherited if done correctly.  California statutes are detailed and strict on the property method for disinheriting family members.

 

HOW OFTEN SHOULD I UPDATE MY ESTATE PLAN?

 

We recommend a comprehensive review of your documents at least every 2-3 years or any time you experience a life change – marriage, divorce, birth, death, property acquisition, starting a business, or any significant financial changes from the time of your last review.

​

CAN I USE ONLINE ESTATE PLANNING FORMS?

 

Yes, these forms exist and they can be valid.  But are you sure you filled them out right? Are they specific to California law?  Even with the best intentions, drafting estate plan documents without professional legal assistance can create catastrophic results down the line.

​

DOES A LIVING TRUST KEEP MY ESTATE OUT OF PROBATE?

 

How discord can impact things

• Trust or will challenges: Disgruntled heirs may challenge the validity of documents or the interpretation of provisions.

• Trustee/executor disputes: Family members may disagree about who should run the trust or handle probate, leading to delays or court involvement.

• Perceived unfairness: If distributions are seen as biased, it can trigger mediation or litigation.

• Hidden assets or funding gaps: Disagreements can arise over whether assets were properly funded into the trust.

​

WHAT IS THE BEST WAY TO MINIMIZE CONFLICT?

 

Strategies to reduce conflict

• Use an independent or professional trustee: A trusted attorney, bank, or professional fiduciary can manage the trust impartially and reduce family tensions.

• Include a no-contest clause (where permitted): This can discourage challenges, though its effectiveness varies by state.

• Clear, detailed trust provisions: Specific distributions, ages, conditions, and contingencies reduce ambiguity.

• Create a comprehensive “letter of wishes”: Explains your intent and reasoning for distributions without creating enforceable rights that could fuel disputes.

• Fund the trust thoroughly: Ensure assets are actually owned by the trust to avoid probate and minimize misunderstandings.

• Use a pour-over will alongside the trust: Directs any unfunded assets into the trust, reducing unintended probate issues.

• Consider guardianship and alternate plans: If applicable, nominate successor guardians and alternate trustees to avoid fighting over control.

• Mediation and dispute-resolution clauses: Require mediation before any court action, helping preserve relationships.

• Regular updates and communication: Review plans after major life events and keep family informed about your intentions (without disclosing sensitive financial details).