To die without the benefit of a Trust is to drag your family through probate. Once probate begins, the easiest probate (one backed by a well drafted Will) can take a minimum of six months. More complicated probates without the benefit of a Will can last as long as two years.

So, why don’t more Americans have Wills, Trusts or Estate Plans? The answer might lie in our fear of talking about or planning for death (ours or our loved ones). But if talking about death bothers us so much, why do it?

Having lost his father to cancer nearly fifteen years ago, a staff member shared this story. The staffer’s father, a smoker of several years, died during a surgery intended to remove the cancer. In the weeks prior (even in the face of a daunting surgery), the staffer fought all attempts made by anyone, including his father to talk about the very real possibility of his dad dying during surgery.

Our staffer confessed he never discussed the possibility of his father’s death because he felt doing so meant giving up, while not doing so meant keeping faith. Nevertheless, his father died.

The immediate family was over taken by grief. The mother shouldered most of the burden. In doing so, she informed the extended family and friends, made funeral arrangements, and provided her children a shoulder to cry on. It wasn’t until weeks after the funeral the staffer confessed to his mother, he would have preferred his father had been cremated. His mother agreed she too thought it would have been best, leaving the staffer to wonder (but never knowing), whether his father felt the same.

It might surprise many readers to learn, the majority of clients express excitement when receiving their plans. Why? Most say they are relieved knowing everything has been taken care of. They say it makes them feel as if a weight has been lifted.

But what if you don’t have an estate?

Regardless of whether or not you have an estate, which is to say regardless of whether you own properties, businesses, possessions, monies or have minor children, there are still other important questions to be answered. Such as, do you want a funeral? If so, open or closed casket? Would you like to be cremated? If you own a pet, who would you like to take care of your pet? Do you have any heirlooms, wedding bands, appliances, etc. you want given to a particular person or organization?

Whether you have a little or a lot, planning for death is beneficial. Having your house in order will not only remove a weight from your shoulders, but when the time comes, it will lessen the load on who you love most.

A well drafted estate plan is indispensible in regards to protecting one’s family, property, assets, and benefits. Yet, as life events develop, estate plans must be updated or they become irrelevant.

Some suggest having your estate plan reviewed annually. Changes in the economy or tax code might affect the plan. Others suggest having your plan reviewed every five years. Still, perhaps the best suggestion is to have your plan reviewed and updated immediately after any major life changing event. But what is a life changing event?

Well, let’s say for example, you and your spouse have a child. That is a fairly major life changing event. As such, you might want to add the child to your Will and maybe set up a Trust for her or him. If you purchase a home, certainly you want to add the home into your Trust. If in the process you sold your existing home, you will want to remove the sold home from the Trust. Suppose you start a business, close a business, divorce, remarry, your child makes you a grandparent, etc. All of these are major life changing events. All of these examples will assuredly affect your estate planning.

The purpose of an estate plan is to avoid probate and to keep the state from deciding how to divvy your possessions, at your expense and that of your heirs. However, an out of date estate plan is near worthless and easily contestable, leaving your estate wide open to the possibility of a messy probate.

Here is another way of looking at it. An estate plan is a tool intended for the use of protecting yourself and your family from probate. Like any tool however, it must be stored somewhere safe, maintained, cleaned and repaired when necessary; treated as such, an estate plan will prove invaluable in the securing and protecting of your estate.

A potential client was looking for help with Probate. Her husband had died suddenly, unexpectedly and without a Will. The couple was the perfect example of a blended family, where husband and wife lived together, both having and living with children from previous marriages.

Having been married when her husband died, the wife expected to inherit shared assets including the house. Many people coming to our office assume everything will automatically transfer to their spouse. Unfortunately that wasn’t meant to be.

California law dictated that in cases where children were involved, and in the absence of a current or properly drafted Will, the surviving spouse was intended to receive no more than 50%, and no less than one-third of the assets.

To better explain, let’s say there was only one child. In that case, the wife and the child would split the assets 50/50. However, if there were two children or more, the law stated the wife could not receive less than one-third.

What that meant for the wife was that she now only owned one-third of her own house. The other two-thirds had to be immediately split among the husband’s children, and immediately split meant selling the house the wife loved, and hoped to remain in until she died.

If the husband had a current and properly drafted Will prior to dying, he could have left the house to the wife if he so wished. Sadly, he didn’t, and his wife was served a notice of eviction.

An attorney’s responsibility is to bestow knowledge, guide us, offer suggestions and advice and provide us options if there are any. Yet, sometimes the best they can do is to tell us how it is and why it is that way. This situation was one of those sad cases because of a misunderstanding of the law. But even in a situation such as this, the family could have found some small comfort had there been a properly drafted Will.

It wasn’t long ago that Debbie met with a prospective client, who was interested in filing for Medi-cal benefits for her special needs child. During her consultation the client revealed that she in fact, already had an Estate Plan which was drafted for her by a past attorney. In said Estate Plan, the client had chosen a family member (who she was less than fond of) to be sole beneficiary. When asked why, the client revealed she had a special needs child and worried about the well being of her child once she passed away.

The client made it clear that if possible, she would have preferred her assets and money go directly to the child, but didn’t think it was possible because the child was special needs.

What the client didn’t know was she could in fact leave her property and assets directly to her child, through a Third Party Special Needs Trust. Not only that, but with the use of the Third Party Special Needs Trust, the client would not only be able to provide a residence and pay the child’s utility costs, she could do so without her child’s Medi-cal benefits being dropped.

Most importantly, the client didn’t have to bring in a third party and hope that her money was distributed properly per her wishes. She had peace of mind knowing they would be.

The moral of this story is to never settle when choosing beneficiaries. The very idea of an Estate Plan is to insure your needs are met. As a client, it’s you who pays the drafting costs. The assets being distributed are yours. It only makes sense that your Estate be directly distributed to people of your choosing, and not to those of your second choosing. One of the greatest benefits of a living trust is that it can be drafted to follow your goals and wishes for your unique family.