|
Copyright 1996 - 2002, Marc S. Weissman Certified Specialist: Estate Planning, Trust and Probate Law Certified by the California Board of Legal Specialization of The State Bar of California Weiss & Weissman, San Francisco, California (650) 574-0362 To Contact us: email Phone/Fax/Mail Homepage |
URGENT 11/2004 UPDATE: See Registered Domestic Partners
| Return to Estate Planning Directory Return to Living Trust Directory See the perfect way to inherit: THE DYNASTY TRUST |
A Trust may be used for married couples, or single people. This brochure discusses the benefits for an unmarried couple, gay or straight, domestic partners or not. Click here if you would like our Brochure for Married Couple, Married Couple Without Children, or Single.
Estate Planning encompasses Wills, Trusts, and other devices to allow you to leave the most assets to your beneficiaries with the least governmental interference
The difference in estate planning for lesbian, gay, or other unmarried couples is an additional concern which often arises: giving decision making rights to partners and avoidance of familial interference.
Although the California Domestic Partners Legislation failed due to the political agenda of the Governor, we are able to achieve the same results through well-drafted documents.
We utilize a variety of documents to achieve these goals.
[Without such a document, the closest blood relative will be appointed by the Court to make decisions.] Included in the scope of this document is authority to `pull the plug,' withhold heroic life support measures, and control hospital visitors.
You may define incapacity. For example, "If Mr. X, Ms. Y, and Dr. Z unanimously agree that I am incapable of managing my own finances, Ted is hereby appointed to make all financial decisions for me."
A Power of Attorney may be changed, canceled, enlarged or restricted (in scope or in time).
Click here for more details on POAs.
Without a Nomination of Conservator, the closest blood relative will be appointed. Having a notarized document nominating your preferred Conservator makes it much more likely that your wishes will be respected. In fact, it is the only way in which your wishes will even be known.
The first step of Probate is `admitting' the Will. In open Court, after notice to family members, the Judge asks if any person has any objection to the Will. Unhappy family members may easily start a Will contest, even without a lawyer.
If your assets are less than $100,000, a Will may be sufficient. If your assets are greater or if you are concerned about people contesting the Will, a Living Trust is more appropriate.
A Trust is a private document and its contents and provisions are confidential.
Probate fees are about 5% of the gross estate; $8,000 for an estate of $150,000; $42,000 for an estate with a gross value of $1,000,000.
Probate is full of delays. The Judge's permission is needed for many actions. Notice must be given (frequently it must be published in a newspaper) and a hearing must be held to decide to sell assets. A Probate usually takes 1 year but can easily take twice as long.
A Trust does not die and Probate is avoided entirely. Decisions can be made immediately. Investment decisions or payments to heirs can be made even before the funeral.
A Trust will NOT complicate your life. While you are alive, the Trust will not change the way you do anything. No special tax returns are required; no reports to any government agency. No control is lost. In fact, once the Trust is set up, you can forget it; everything should work automatically.
Either separate Trusts or one Living Trust can be prepared for an unmarried couple. The founders are the managers (TRUSTEES) of the property, the same as they were prior to the formation of the Trust.
They are also the sole BENEFICIARIES of the Trust during their lives. They have full control. They are entitled to do anything they want to do with Trust assets. No one else has any powers over the Trust.
The Trust may be amended easily at any time during the lifetimes of the founders. As circumstances change, the Trust should be amended to reflect changes.
A major advantage of a Trust is the ease of establishing a gift of a Life Estate.
A Life Estate is the right to use a gift for the recipient's entire lifetime, but at his later death, the remaining assets return to the family of the donor or another recipient.
For example, Bob and Ted have a long term relationship. Bob has $500,000 and wants to take care of Ted for Ted's whole lifetime, but at Ted's death, the balance goes to Bob's family. A Living Trust is the ideal tool to accomplish this.
After Bob dies, Ted can be his own manager, with almost total freedom to spend everything, or Bob can appoint another person to be the manager to take care of Ted.
A TRUST IS VERY APPROPRIATE FOR:
A major advantage of a Trust is the speed and flexibility it provides. Since Court approval is not required, property can be transferred immediately after death, providing for financial needs without the delay and expensive procedural requirements of Probate.
Some clients give the Trustee total control, using such language as, "My Trustee shall distribute to Ted whatever amount the Trustee deems appropriate."
Some clients put additional strings on bequests, such as drug free testing, non-participation in certain religious groups, or any other matters which meet the particular needs of the client.
With a little imagination, whatever method is right for each client's situation can be constructed.
Deciding on the distribution or `strings' is very difficult sometimes, but total flexibility is achieved with a Living Trust.
Disabled people present special needs in planning. The Trust is the ideal way to provide for a disabled person in such a way to retain eligibility for most public assistance. Click here for more details on Special Needs Trust.
Typically, there is only one other disadvantage the founder of a Living Trust: its cost of formation. (There are no other costs of its operation during the lifetime of the founders - no tax returns, no management fees, no legal fees, no filing fees.)
If the Trust remains in existence after the death of the founder, an annual Trust Income Tax Return is required.
URGENT 11/2004 UPDATE: See Registered Domestic Partners
| Return to Estate Planning Directory Return to Living Trust Directory |