Will? Trust? Original Documents? with a Gilroy Estate Planning Attorney

Do you have a Will or do you have a Trust? Which is better for you? Do you have your original documents, or are they stored at the attorney’s office?

A local man died few years ago and he owned 16 pieces of property here in South Valley. But he had no Trust. Why? His attorney had prepared a Will for him, but why wasn’t there a Trust? The man’s estate likely paid more than $150,000 in probate fees that largely could have been avoided if he had a Trust. His attorney collected a huge fee that could also have been avoided. That money could have stayed in the family.

If you have a Will, the assets pass through probate. The process is slow, costly, and is open to the public. Having your property held in a Trust avoids probate, so the assets pass to your heirs faster and at a lower cost. Having a proper Trust will also allow your family to avoid having to open a Conservatorship for you if you are incapacitated and unable to handle your own affairs.

The main reasons why people don’t have Trusts are 1) procrastination, and 2) lack of knowledge. A good Trust will protect you during your own life, and provide protection for your heirs as well.

A client came to me last week with two of her daughters, and she wanted a Trust. She had tried to get the Trust done about 10 or 12 years ago, but despite several requests for a Trust, her attorney refused to prepare a Trust and told her that she would be fine with only a Will. Really? She owns two pieces of choice real estate in our area, and they’re valued at close to $2 million. A Will has no legal effect until the moment of death, so the Will would not have provided any protection for her during her lifetime, and then her two properties would have had to pass though probate following her death. The approximate probate fees if she were to die today would be about $66,000.

The woman and her daughters apologized for not bringing the original Will for me to review, but that was because the attorney had kept the original Will. Really? That’s an old attorney trick so that the family has to contact the attorney after the person dies, and then the attorney has the opportunity to make a lot more money from the estate of the deceased person. Don’t let that happen to you or your family. Keep the signed, original documents in your possession. If you’re afraid that you might lose them, keep them in a safe deposit box at the bank and give copies to some trusted people. Your attorney should keep copies, but you should hold the originals.

In the case of the woman who came in with two of her daughters, they were hoping that they would never need to present that original of the old Will, because they didn’t want to have to return to that attorney’s office. We didn’t need the old Will to establish a new Trust and pour-over Will, along with the Durable Power of Attorney and Advance Healthcare Directives, so the family was fine to move ahead and get things done as the mother wanted.

If you have real estate, or if you have assets worth more than $150,000, you should have a good Trust and the other documents that go along with it… especially the Durable Power of Attorney and the Advance Healthcare Directives. The correct “package” of legal documents will allow the trusted people you appoint to make the decisions to legally care for you, and it will allow your estate to pass your assets to your heirs with fewer problems. . . . Get it done!