Sometimes, when clients come in for their initial consultation, they say something like, “Oh, our estate is very simple. We just need a simple will.” I often ask what their reasoning is, but most people demur. They’re not sure exactly what the difference is between a will and a trust, but a trust sounds complicated—not to mention EXPENSIVE!
The truth is, most people in California need a trust. As they say in estate planning, “A trust is a MUST!” But why?
What is a will? Well, a “will” is short for “last will and testament.” In essence, a will is a document that expresses your final statement on what you wish to happen to your finances. There are several problems with that.
First, what happens if you are incapacitated, in a coma, lost at sea, or lost in the mountains during a hike? Well, without a death certificate, your will has no power. Who will pay your bills? What will happen to your kids? Who does your money and assets belong to?
Second, and more importantly, every will is put through an expensive, laborious process called probate. Probate is essentially a type of court case where the judge oversees every aspect of the execution of the will. This is why the person administering the probate is often called the executor. The executor can hire an attorney to help with the legal documents and administration of the probate estate. The executor and the attorney then get paid out of the probate estate, based on a percentage of the value of the assets. For instance, if a decedent died owning a single piece of property worth $1 million and absolutely nothing else, the executor and attorney each stand to earn $23,000. What if the decedent owed $900,000 on that property to a mortgage loan company? Doesn’t matter. The fees paid to the executor and attorney are based on the gross probate estate value, not the net estate value.
No one wants to write a check for $50,000, no matter how much they are inheriting.
With a properly funded trust, the trustee can reduce the costs of administration and quickly distribute assets to your beneficiaries without being caught up in a costly probate administration.
Remember, estate planning is an act of love for the people you love. Don’t make them go through probate.