The last will and testament is technically speaking the only one truly testamentary device. In simple terms, a will contains the person’s intention on how his assets will be distributed after his death. A will need not be restricted only to the distribution of assets but can also include other intentions of the deceased person including the appointment of executor and guardians for minor children. No matter how long or short the will is, the executor has the obligation of carrying out the intentions of the deceased person under court supervision. The courts do not play any role in the creation of a will. However the person must have the mental capacity to make a will at the time he or she makes the will. Our Fresno estate planning attorneys can assist you with the preparation of your will.

Valid Will

Most individuals correctly perceive that a will must be in writing and properly witnessed in order to be effective. Nevertheless, to ensure the will’s validity, the best practice is to execute a written will in the presence of the requisite number of attesting witnesses, all in accordance with  statutory requirements. Such a procedure should be accomplished under the supervision of an attorney skilled in the preparation and execution of such instruments in order to ensure statutory compliance. Once duly executed, the will remains completely revocable and amendable by the testator until death. It is only the testator’s death and the subsequent “admission” of the will to probate that gives the will legal effect.

Although a close family member is often selected for the office of executor, there are few restrictions in this regard. Usually, anyone of full age and capacity who is capable of administering estate assets may be appointed as the executor, regardless of his or her relationship to the testator. As with the various management forms considered in the section on asset management, this may be a professional adviser, a close friend, or a corporate entity such as a bank or a trust company. When the assets are extensive or complex and the objectives of the will are sophisticated, a professional or corporate entity could, indeed, be a desirable choice, serving alone or together with a family member. The Fresno estate planning attorneys of the Thomas Hogan Law Office can assist you prepare a valid will.

Trusts

A trust created during the lifetime of the individual (inter vivos) is an agreement in which the individual formally transfers assets or property to a trustee, who agrees to hold and manage the property on behalf of the individual (and sometimes for members of the individual’s family as well, that is, the beneficiaries) for some particular period of time would most probably extend for the rest of the individual’s life.

Simply defined, a trust is a fiduciary relationship in which the trustee holds the legal title to the property subject to an obligation to use the property so transferred for the benefit of the beneficiary. As in agency agreements, the creation of an inter vivos trust relationship requires no court authority. It does, however, require a particular degree of mental capacity. Although a close family member is often selected for the office, there are few restrictions in this regard. Usually, anyone of full age and capacity who is capable of managing the transferred assets may be appointed as trustee regardless of relationship to the individual. The trustee may be a professional adviser, a close friend, or a corporate entity such as a bank or a trust company. When assets are extensive or complex and objectives are sophisticated, a professional or corporate entity could, indeed, be a desirable choice, serving alone or together with a family member. Our Fresno estate planning attorneys have assisted many individuals create trusts for estate planning.

Probate

You can exclude a property from your estate by registering the property in joint tenancy with rights of survivorship. Your relative or relatives to whom you want to transfer the property after your death should be made joint tenants. Up on your death the property will the property of these relatives without having to go through probate. Joint tenancy and tenancy by the entirety are like each other and unlike a tenancy in common because the cotenants have a right of survivorship. When one owner dies, the property automatically passes to the surviving tenant. When a tenant in common dies, by contrast, his or her interest in the property goes to his or her heirs, not to the surviving cotenant. Finally, joint tenants and tenants by the entirety always have equal shares in the property; the interests of tenants in common can be split up in different ways (with one owning one-third and the other owning two-thirds, for example). Contact the Thomas Hogan Law Office to know more about the various legal methods of avoiding probate.


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