Q: What is the very basic information needed in a Trust and Will so they won't go into probate court? We have a will and a trust (a large binder full of extraneous legalese that was done for us 15 years ago for $1,750). I don't want to throw away anything until I know exactly what I should keep. I just want to simplify everything for our two sons. Our lawyer was of no help. Thanks. -- June, Cameron Park, CA
A: Remember that if you have a will with no accompanying revocable living trust, your estate will go through probate. It's the addition of the living trust that keeps an estate out of probate. And even with a perfectly crafted trust agreement, unless your assets are actually titled in the name of the trust, those assets may still need to go through probate.
At its most basic, a revocable living trust requires the following: (1) a settlor or trustor (the person who creates the trust); (2) intent to create the trust; (3) trust property; (4) a valid, legal purpose; and (5) at least one beneficiary.
When you create a living trust, you should also create a will to cover any assets that you have not funded into your trust. If you have minor children, you nominate guardians for them in your will.
In California, the requirements for a will vary depending on the type that you execute. One of the simplest options is the statutory Will form, which is authorized by the Probate Code. The testator (the person making the Will) fills in the blanks with his or her wishes, and then follows the signing instructions at the beginning of the Will. Other options include holographic (handwritten) Wills, and the standard written Will that most people are familiar with. With limited exceptions, the Will must be signed and dated and, unless entirely in the handwriting of the testator, witnessed by two witnesses, to be valid.
You mentioned that your documents are 15 years old. When I meet with clients whose documents are that old, there are usually important improvements to be made due to the passage of time and changes in the law. Often, major changes are required to the named beneficiaries, successor trustees, or other key provisions. Tax laws often change, which can lead to structural changes in your trust planning.
If you don't feel that your attorney helped you understand your documents and how to use them, I suggest you find a different attorney, one whom you trust.
I would strongly caution you against attempting to draft your own updated will or trust. If you have both a will and a trust, the documents need to be properly coordinated in order to work as intended. If there are inconsistencies between the documents or the provisions within either document, then your executor or trustee could end up in court to sort everything out.
Even if you meet the bare legal requirements for a will or trust, the documents could still be challenged in court by the beneficiaries, especially if there are questions about their validity. If the trust is insufficient and fails, then your estate may be subject to probate. A skilled estate planning attorney will prepare documents that are much less likely to be successfully challenged in court.
Your concerns about cost and the "extraneous legalese" in your documents are common ones. Although your trust may seem long, that language is there to protect you and your wishes.
The trust document acts as a guide for your trustee on how you want your estate handled. Many of the provisions are included to make estate or trust administration process easier for your trustee and to protect the interests of your beneficiaries.
Estate planning is truly an investment, and a properly done plan can save your executor, trustee, and beneficiaries both time and money during the administration process. Good luck!