FAQ | Estate Planning, Probate, Wills & Trust Law


Your Questions - Answered

Can't I just utilize the “Joint Tenancy” title to avoid Probate of real property?

Holding real property as joint tenants will avoid probate at the first death because of the joint tenancy's "right of survivorship" feature. However, when the surviving owner becomes a sole owner of the property, at his/her second death the real property will need to be probated. It is notable that in joint tenancy, only the deceased joint tenant's interest in the property receives a step up in cost basis to the date of death value of the property. This is especially detrimental to married couples; for a married couple - the joint tenancy form of title does not allow for a step up in cost basis of the surviving spouse's share in the property. This may result in significantly higher capital gains taxes if the surviving spouse sells the property later on. Conversely, for a married couple - if the property is owned in trust as community property, or if it is owned as "husband and wife as community property with right of survivorship" - the entire property (and not just the deceased spouse's share) will receive a step up in cost basis on the first death, which would reduce capital gains taxes to the surviving spouse, should they decide to sell.

Why do I need a Will if I am setting up a Trust?

The Trust can only govern the property you TRANSFER in the name of your trust during your life. If some (or all) of your property remains in your individual name at death, the Trustee has no access to it - because such property defaults to your Probate Estate, and is governed by the terms of a Will (or if no Will is left - by the laws of intestate succession of the California Probate Code). To ensure your "probate estate" is distributed as part of your living Trust after you die, it is necessary to also sign a Will named a "Pour Over Will." It is named so because by its terms, it "Pours" into your living trust any property which you did not transfer in trust during your life yourself. It does so by naming your Trust as the SOLE BENEFICIARY of the Will. The Pour Over Will is the safety net that ensures that all of your assets are distributed as per the terms of your living Trust.

What is a Heggstad Petition?

Attorneys file a Heggstad Petition with Probate Court seeking a court order to have property transferred into the Trust after the trust creator's death. Essentially, where a person establishes a living trust, but omits to title certain property in the trust, at their death such property becomes a part of their probate estate. The above mentioned Pour Over Will, together with an Assignment of Property to the Trust (that generally accompanies a Living Trust) would permit the Probate Court to consider issuing an Order that the property can be transferred into the Trust without having to Probate the Pour Over Will. A Heggstad Petition is a "probate shortcut" but can only be a winning Heggstad Petition when certain very specific elements are met. Having your estate plan professionally prepared by an Attorney generally ensures that all such elements are in place and your property never goes through probate, even if you don't title it into your trust. A Heggstad Petition is granted at the discretion of the Court. Our Attorney has years of experience with winning Heggstad Petitions and stands at the ready to counsel you in this regard.

How is a family trust affected by a divorce?

Divorce is destructive in so many ways - including - it revokes a family estate plan by operation of law. A Divorce Decree revokes all beneficiary and fiduciary designations in a family trust. Following a divorce, each (newly-single) spouse will need to "rebuild" his and her own separate estate plan, and protect from Probate by setting up an individual trust. Furthermore, to comply with the Marital Settlement Agreement and Divorce Decree issued by the Family Court, assets from the family trust will need to be "taken out" of the Family Trust, and "retitled" into the individual names of each former spouse. It is especially critical for spouses to rebuild their individual Single Person Estate Plans when minor children are involved, and where one parent has primary physical custody of minor children.

How does a Second Marriage trust work?

This type of trust is especially useful in the case of a second marriage when each spouse comes into the marriage with significant separate property assets, and each has children from a prior marriage. Without proper estate planning, there is a possibility that the children of one of the spouses will end up with all of the couple's property, and the children of the other spouse will get nothing. A properly drawn living trust ensures that the interests of each set of children are properly protected, while the surviving spouse remains adequately cared for during his or her life, following the death of one spouse. In this case, a trust is the only way to accomplish such goals, while also avoiding formal probate administration, not to mention a family feud that could ensue without proper estate planning.

How does a Trust avoid a Conservatorship?

If you become incapacitated and are unable to conduct your financial affairs on your own, and you do not have a trust and a Durable Power of Attorney for financial management, your family would have no choice but to petition the Court to have a Conservator appointed for you. A Conservator of the Estate (which is the equivalent of a Trustee or Power of Attorney) will take charge of your property, pay your bills, and take care of your affairs, including selling or refinancing property to raise funds for your care. Conservatorship cases are strictly supervised by the Courts and involve a number of cost-intensive formalities. Having a Living Trust and a Durable Power of Attorney as well as a Health Care Directive enables a trusted person to conduct your financial and medical affairs without any court involvement, while protecting your privacy and maximizing your assets for your benefit rather than spending them on court costs and fees. When you set up a proper estate plan, a Conservatorship is not needed

What does an Advance Health Care Directive do?

An Advance Health Care Directive is a legal document where you name someone to act as your Health Care Agent, to take care of you and make medical decisions for you in the event you cannot do so yourself. If you become incapacitated, your Health Care Agent will have the legal authority to make medical decisions for you, authorize medical treatment, review medical records, hire and fire your doctors and caregivers, and make life and death decisions, including terminating life support, organ donation, etc. Your Agent will also have your express permission to request and receive your medical records, and the holders of such records will be released from liability to surrender them to your Agent (which is generally referred to as a "HIPAA Release"). For incapacitated adults without signed Advance Health Care Directives, a family member would need to petition the Court to become a Conservator of the Person of such incapacitated adult.

Can I still make medical decisions for my child after he or she turns 18 and legally becomes an Adult?

The answer is "NO." As a parent, you can make medical decisions and access your children's medical records only until they reach age of majority. After they turn 18, you can no longer receive their medical records or authorize medical treatment on their behalf. You will not be given any information about their medical condition nor will you be able to discuss their medical needs with their doctor. Therefore it is strongly recommended for parents (especially of college-age children) to have children sign an Advance Health Care Directive to permit the Parent to continue to serve as their Health Care Agent.

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Attorney Maria N. Jonsson, Esq. is a Certified Specialist in Estate Planning, Trust & Probate Law by the State Bar of California Board of Legal Specialization. The Law Offices of Maria N. Jonsson, PC is committed to providing a comprehensive and holistic analysis of your specific circumstances as they relate to Estate Planning, Probate and Trust Administration issues in California. Schedule a one-on-one discussion of your case with Attorney Jonsson directly.