Posts Tagged ‘Probate’
by Tom Hogan
Estate planning is not just for the aged. If you have assets and property, you should give serious consideration to estate planning. Life is uncertain. If you die without an estate planning tool such as a will or a trust in place, your assets will be distributed according to the intestacy laws. Talk to a Modesto estate planning attorney from the Thomas Hogan Law Office to know how you can determine how your property must be distributed or used after your death. The intestacy laws are rather rigid, generally speaking. This was true in the early nineteenth century, and it is still true today. The statutes lay down rules about the devolution of property; and these rules are concrete, specific, and in the normal case inflexible.
Most Americans who are middle-aged and older and most people with a substantial amount of property have a will, so devise of property according to the terms of a will is the most common means of transmission of property at death. The basic form of the will must express the intent to dispose of property in writing, signed by the testator, and attested by witnesses, and the courts are pretty strict about only honoring wills that comply with the requirements. The requirement of a written will establishes a permanent record for the court to consider and brings home the seriousness of the endeavor. So far videotapes and audiotapes have not been accepted as substitutes for writing. A lawyer sometimes will videotape the execution of a will to show that the testator appeared to know what he or she was doing, but the writing, not the videotape, is the actual will. The signature requirement demonstrates seriousness, and it also shows completeness. The law assumes that if someone is merely making notes about the disposition of property, or doing a draft of a will, the document will not be signed; only a final, complete version of a document is usually signed, so the signature shows that the testator has fully and finally expressed his or her wishes. The requirement of witnesses serves similar functions. If you want to prepare a valid will, contact our office to speak with an estate planning attorney in the Modesto area.
The need to distribute your property while at the same time avoiding court costs is taking form as one of the major financial problems that you must resolve before your death. Upon your death you want your estate to go to chosen survivors that you desire. As for court costs, avoid the need for a probate court to distribute your estate. Proceedings of a probate court can be expensive. Probate courts distribute legacies, devises of real property, and residuary property to the spouse, descendants, and charities through an attested will made by the deceased in testamentary capacity. The trust, a type of will substitute, holds great promise as the solution to these problems. Trusts avoid probate court to transfer title of ownership. Trusts avoid court costs and delays. Trusts enable you to control your property without legally owning it. In establishing a trust the trustor divides the property into legal and beneficial ownerships. The property transferred into a trust is called by a special term; it is called the corpus of the trust. Legal ownership is held by the trustee and beneficial ownership is held by the beneficiary. The trustee holds the legal title and the beneficiary uses the property. The trust merely divides the legal ownership from the beneficial ownership. The trustor can change the trust with provisions of a revocable living trust. Property is distributed according to the wishes of the trustor. The trustee, such as the trustor’s bank, can transfer a deceased trustor’s farm, part of the trust’s property, to new beneficiaries. The trustor as the former beneficiary would have had the rights to all benefits of the property, such as income, and the right to use the property, such as live on the farm. The trustee transfers the beneficiary rights to the farm to the new beneficiaries, such as the deceased trustor’s spouse and the deceased trustor’s children.
The formation of a trust is a perfectly legal method of avoiding probate and the related expenses. You can create a separate trust for the benefit of each of your heirs. You can transfer the asset you want that legal heir to have after your death to the trust you created for the benefit of that legal heir. An asset transferred to a trust is no longer the asset of the transferee and will not be subject to probate on the death of the transferee. You can also avoid probate by having multiple wills. In your primary will, you should include assets that require probate while your secondary wills should include assets that need not go through probate. In such cases, only the primary will is subject to probate. Contact the Thomas Hogan Law Office for advice on how to legally avoid probate.
Consult with Us:
Life is full of uncertainties that is why it is important to always plan ahead. We are here to help you plan out your will, your trusts and estate to make sure that the future of the ones you leave behind are secure. To speak with an estate planning expert from the Thomas Hogan Law Office, call our Modesto office at (209) 492-9335.