WILLS AND TRUSTS
JUNE 24, 2008
WHAT IS A WILL?
A will is the most basic type of estate planning document. It provides instructions
regarding actions to be carried out after your death. Typically a will provides for:
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Distribution of some or all of the assets in your name;
Nomination of a guardian for your minor children; and
Nomination of an executor, the person who carries out your instructions.
WHAT PROPERTY ISN’T COVERED BY A WILL?
The following assets do not pass under your will:
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Life insurance proceeds
Joint tenancy assets
“Pay on death” accounts
Retirement plans
Revocable (living) trust assets
CAN I PREPARE MY OWN WILL?
Yes. However, a will must be prepared and executed in compliance with specific legal
formalities that can easily be confused or overlooked by a lay person. Further, only a
qualified attorney can ensure that your desires are adequately expressed in language
that is best capable of withstanding a challenge. For these reasons it is strongly
recommended that your will be prepared by a qualified estate planning attorney.
WHAT IS A REVOCABLE LIVING TRUST?
A revocable living trust holds your assets during your lifetime and distribute your assets
at death. A revocable living trust are that it avoids probate of assets in the trust and can
also avoid a conservatorship of the estate in the event of incapacity.
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DOES EVERYONE NEED A REVOCABLE LIVING TRUST?
Not necessarily. However, while there are some general guidelines that apply, because
everyone’s circumstances are unique it is safest to rely on the advice of a qualified
estate planning attorney as to whether you should have a revocable living trust.
WILL MY HEIRS OR BENEFICIARIES HAVE TO PAY ESTATE TAX?
Estate taxes are currently payable only on very large estates. In 2008, only estates with
a net value of $2,000,000 or more are subject to estate tax. In 2009 that amount
increases to $3,500,000, and in 2010 there is no estate tax. There is likely to be
congressional action regarding the extension of the estate tax, limiting it to very large
estates, over the next few years.
HOW CAN I LEARN MORE?
Contact an attorney who specializes in estate planning. The California State Bar
designates certain attorneys who have completed extensive education, testing, and
length and breadth of practice criteria as Certified Specialists in Estate Planning,
Probate and Trust Law. A list of Specialists in Orange County can be found on the State
Bar website. A good alternative referral source is the Orange County Bar Association.
Also, visit the State Bar of California web page for access to three pamphlets published
by the State Bar (“Do I Need A Will?”; “Do I Need a Living Trust?”; and “Do I Need
Estate Planning?”), as well as a statutory will form and a section of frequently asked
questions. Go to www.calbar.ca.gov, click on “Public Services,” then click on “Making a
Simple Will.”
Glossary
Advance Health Care
Directive
The document that allows an individual to appoint an
agent to make care and treatment decisions, and to give
instructions about the individual’s health care wishes.
Annual Exclusion
An amount (currently $12,000) that can be given
annually to any one or more persons. A husband and
wife together can give $24,000 each year to any number
of people.
Annuity
The periodic payment of a fixed sum of money for a
lifetime or for a number of years.
Beneficiary
A person or entity that derives benefit from a will, trust,
insurance policy, or other legally binding document or
contract.
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Codicil
Conservator
An amendment to a will, which must be executed with
the same formalities as a will.
A person or entity appointed by a court to manage the
person or estate of a person incapable of managing his
or her own affairs.
Contingency
A possibility or an event which may occur. For example,
a contingent beneficiary.
Corpus
The property held in a trust, other than current income.
Decedent
A deceased person.
Deed
A legal instrument used to transfer title to real property.
Domicile
The place where a person has voluntarily elected to
reside, not for a temporary purpose, but with a present
intention of making it his or her home.
Donee
One who receives a gift.
Donor
One who makes a gift.
Durable Power of
Attorney
A document in which an individual or entity is
designated to exercise specific powers on behalf of the
maker in the event the maker is unwilling or unable to
act on his or her own behalf.
Escheat
The process by which a decedent’s property is
transferred to the state.
Taxes assessed by the federal government upon a
decedent’s right to transfer property.
Estate Tax
Fiduciary
A person or entity entrusted with duty to care for an
asset of another.
Guardian
A person or entity appointed by a court to manage the
person or estate of a minor.
Those persons who are entitled to the property of a
decedent under the laws of intestate succession.
Heirs
Inherit
To receive property from a deceased person.
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Inter Vivos Trust (also
known as a Living
Trust or a Revocable
Trust)
Intestate
A trust established, and which may be amended, by a
person during his or her lifetime.
Irrevocable Trust
A trust in which the grantor expressly gives up the
power to alter, amend or terminate the trust, in whole or
in part.
Joint Tenancy
A form of co-ownership in which two or more persons
hold title to the same property, with title eventually
passing to the ultimate survivor.
Life Estate
The right of a person to use property only for his or her
lifetime.
Payable on
Death(POD)
An account that is automatically payable at death to a
named person.
Personal Property
Tangible assets whose ownership arises out of physical
possession or a document of ownership.
The formal administration of the estate of a decedent,
involving the collection of assets, payment of expenses,
and distribution to heirs or beneficiaries.
A type of co-ownership between two or more persons
who hold undivided interests in property without any
right of survivorship.
Pertaining to a will.
A trust established in a will.
A person making or who has made a will.
The legal relationship created when one person holds
title to property for the benefit of another.
The person or entity appointed to hold and administer
trust property.
The maker of a trust,
A legal instrument expressing a person’s wishes as to
the disposition of his or her property at death.
The person who observes the signing of a will or other
legal instrument.
Probate
Tenancy in Common
Testamentary
Testamentary Trust
Testator
Trust
Trustee
Trustor (or Settlor)
Will
Witness
The term used when a person dies without leaving a
valid will.
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Orange County Employees Association
830 North Ross Street, Santa Ana, CA 92701 714-835-3355; www.oceamember.org
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SAMPLE ESTATE PLANNING
CONFIDENTIAL QUESTIONNAIRE
Client Information
Legal name:
first
middle
last
List all prior legal names
.
List all other names used
.
Date of birth:
/
/
Place of birth:
city
Social Security number:
U.S. citizen: Yes
state
/
No
country
/
California resident: Yes
No
Permanent address:
street address
city
Do you claim Florida homestead exemption?
Telephone numbers: Home
Occupation:
Marital status
state
Yes
zip code
No
Work
Cell phone
Employer:
single / married / divorced / separated / widowed
Marital history :Have you ever been divorced or widowed?
Yes
No
County
Family Information
Spouse
If you are currently married, please state the date and place of your marriage, and the legal name
and birth date of your spouse:
Date of marriage:
/
/
Date
city
Legal name of spouse:
first
Date of birth of spouse:
state
country
Maiden Name
middle
/
last
/
Did you enter into a "pre-nuptial” or "post-nuptial agreement"?
Yes
No
If yes, please attach a signed copy with all subsequent modifications.
While married, have you ever lived in a state other than Arizona, California, Idaho, Louisiana,
Nevada, New Mexico, Texas, Washington or Wisconsin? Yes
No
If yes, did you purchase a home or other real property in that state? Yes
No
Children
If you have any children, please state the legal name and birth date of each child and state
whether a child has any children (i.e., your grandchildren). Do not include a step child or foster
child who lives with you. Use additional sheets if necessary.
1.
Legal name:
first
Date of birth:
2.
/
/
middle
last
Children? If yes, # and names
Legal name:
first
Date of birth:
/
/
middle
last
Children? If yes, # and names
Has any child predeceased you? YES/NO
Did they have children YES/NO
Information for Your Will or Trust / Fiduciaries / Personal Representative
Who do you want to nominate as the “personal representative” or the executor of your estate?
Married people often select their spouse. Please note that under California law, if the personal
representative is not related to you, or the spouse of someone related to you, he or she must be a
California resident. You may also select “joint” personal representatives or a “corporate”
personal representative (e.g., bank or trust company).
Personal Representative
Legal name:
first
middle initial
last
Current address:
street address
city
state
zip county
Relationship to you:
Alternate Personal Representative
Legal name:
first
middle initial
last
Current address:
street address
city
state
zip county
Relationship to you:
Some probate judges will allow the personal representative to serve without having to post a
bond if the decedent’s will waives the bond requirement. Other judges refuse to allow a waiver
because of concerns about protecting estate creditors and beneficiaries from misfeasance or
nonfeasance. Do you want your personal representative or alternate to be required post a bond
(which is paid by your estate) to be able to serve? Yes
No
Trustee
If you are considering establishing a trust during your life or after your death for a spouse, child,
grandchild, parent or another person or charity (especially to avoid payment of large sums of
money to a beneficiary at one time, or prior to a beneficiary attaining a certain age, or for a
specific purpose), whom do you want to nominate as the trustee? You may also select “cotrustees” or a “corporate” trustee (e.g., bank or trust company).
Legal name:
first
middle initial
last
Current address:
street address
Relationship to you:
city
state
zip county
Alternate Trustee
Legal name:
first
middle initial
last
Current address:
street address
city
state
zip county
Relationship to you:
Do you want your trustee or alternate to be required to post a bond (which is paid from the trust
assets) to be able to serve? Yes
No
Guardians
If you have any children who are minors, a guardian should be named in your will to care for
their person and to manage their property until they attain 18 years of age in the event of the
death of both parents. You may nominate “joint” guardians. You may also nominate separate
guardians for a child, that is, a “guardian of the person” and a “guardian of the property”
especially if a proposed guardian may not be suitable for handling a child's property and
finances. A guardian of the property could include a “corporate” guardian or corporate coguardian.
Legal name:
first
middle initial
last
Current address:
street address
city
state
zip county
Relationship to you:
Legal name:
first
middle initial
last
Current address:
street address
Relationship to you:
city
state
zip county
Specific Bequests
List any specific items (e.g., automobiles, jewelry, personal effects, etc.) or specific amounts of
money that you wish to leave to one or more beneficiaries. If you have a large number of items
of “tangible personal property” that you want to give to several persons, you may want to
consider having a “separate writing” prepared.
Item or
Amount
Name of
Beneficiary
Address of Beneficiary
Relationship
.
If a beneficiary of a specific bequest does not survive you, state who is to receive his or her share
(e.g., the children of that beneficiary or one or more other persons).
.
Remainder
After paying expenses of administration and any debts and taxes, and after distributing any
specific bequests, the balance of your estate is referred to as the “remainder.” Who do you want
to receive the remainder and in what amount or percent.
Name of
Beneficiary
Address of Beneficiary
Relationship
Percentage
or Amount
.
If a residuary beneficiary does not survive you, who is to receive his or her share (e.g., the
children of that beneficiary or one or more other persons).
Miscellaneous
Do you currently have: (If yes to any please attach signed copies with any codicils or
amendments
A will or revocable living trust?
Yes
No
A durable power of attorney?
Yes
No
A health care directive?
Yes
No
If you want:
1.
Any of your organs donated at your death, state: the specific organs (or allow any usable):
any limitations on their use (or allow any purpose):
2.
A specific disposition of your remains (e.g., cremation, burial at specific cemetery, etc.),
specify the disposition:
durable power of attorney (i.e., a document authorizing another person to control your assets
on your behalf and for your benefit),
Effective date of Power:
immediately
if a specific date, specify date
/
/
only if I am unavailable
only if I become mentally or physically incapacitated
Legal name:
first
middle initial
last
Current address:
street address
Relationship to you:
city
state
zip county
Legal name:
first
middle initial
last
Current address:
street address
city
state
zip county
Relationship to you:
4. A health care directive (i.e., documents authorizing another person to carry out your
wishes in the event you are unable to communicate your decisions concerning extending,
withholding or withdrawing life-prolonging procedures under certain legally-permissible
circumstances), state:
Health Care Agent
Legal name:
first
middle initial
last
Current address:
street address
city
state
zip code
Relationship to you:
Telephone numbers:
Work
Home
Alternate Health Care Agent
Legal name:
first
middle initial
last
Current address:
street address
city
state
Relationship to you:
Telephone numbers:
Home
Work
zip code
Summary of Assets and Liabilities
Note: The following is a financial summary for estate and tax planning purposes. Further
detailed information and copies of documents concerning particular assets and liabilities
may be requested.
Assets
Please state the estimated value of all assets you own or in which you have any interest (either
individually or jointly or that are held in trust for your benefit). Concerning each category,
indicate total values for each form of ownership without deducting any mortgage or debt. If you
own an asset individually that is “payable on death” to a named beneficiary (e.g., a bank account,
IRA or other retirement account, annuity, etc.), please provide a copy of the supporting
documents.
Client
(only)
Residence
Other real property
Bank accounts, certificates of
deposit and money market funds
Stocks, bonds and mutual funds
Businesses in which you own an
interest (e.g., as sole proprietor,
partner, shareholder, member)
Receivables paid to you (e.g.,
mortgage note, promissory note)
Cash value (not death benefit) of
life insurance you own
Household furniture, furnishings
and appliances
Motor vehicles
Jewelry, art objects, antiques,
collections and other valuable
personal property
Retirement accounts (e.g.,
qualified plan, IRA - do not
include social security benefits)
Annuities
Miscellaneous other property not
included above
Trusts in which you are a
beneficiary
Total assets:
Jointly
with Spouse
Jointly
with Others
Total
Liabilities
Client
(only)
Jointly
with Spouse
Jointly
with Others
Total
Mortgage(s) on residence
Mortgage(s) on other real property
Personal or unsecured debts you
owe to others
Other significant debts, liabilities
and judgments
Total liabilities:
Net Worth
Your total Assets less your total Liabilities: $
Life Insurance
List all life insurance policies insuring your life.
Amount of
death benefit
Type of policy
(e.g. term, whole life)
Beneficiary
Owner Company
.
Date:
Signed:
Client
