M. WHAT DO I DO NOW?

The next step really depends upon your personal circumstances and your desires as to distribution of your property.  As you can see from the discussion above, which is a simplified summary of the estate planning area, there are a number of complex rules that interact and impact your personal family plan.  In many ways this is unfortunate, because the planning for management of property for your family at the time of your death should be a very simple process.  The interaction of state probate laws, the complexity of living trusts, and the operation of the income, estate and gift tax rules make this far from a simple process.  I can suggest some general guidelines, however, keeping in mind that this is an overview and should not be considered specific advice as to your particular situation.

If your estate is substantial (meaning it has a value in excess of $200,000 - $3,000,000), you may want to consider engaging a professional estate planning attorney unless your goals are relatively simple.  If you plan on simply distributing your property to adults (such as parents or siblings), a simple will like the California Statutory Will Form may be perfectly adequate.  See Appendix vii.  If you are going to make provisions for others on a basis other than an outright distribution (such as a gift in trust) then you may want to consider carefully the provisions related to transfers for children discussed above. 

If the Statutory Will Form is not acceptable to you, you can write your own will.  While this sounds simple, it can be dangerous.  A handwritten holographic will is generally recognized in the State of California.  To give you an example of the problem, however, you might be interested in what happened with my father’s estate.  I was born in South Carolina, and at the time of his death (when I was relatively young) my father wrote a will that stated:  "I give my house to my wife for as long as she lives."  While this sounds relatively simple, the title companies were concerned that my mother only owned the right to use the house while she was living, and at the time of her death it was to go to someone else.  Under the laws of succession in the State of South Carolina, that meant that at her death the children would have an ownership interest in the house.  When my mother wanted to sell the house, it was necessary for her to become involved in a relatively expensive court proceeding where, in effect, she sued her children so that she was able to proceed with the sale of the house.  These kinds of simple mistakes can be disastrous, and while professional assistance is expensive, it can often be well worthwhile.

As the magnitude of your estate reaches $600,000 - $700,000, tax planning becomes an additional concern, and it becomes far more desirable to arrange for your planning to be implemented through an estate planning attorney.

I have tried to set forth below general summaries of conclusions that are frequently reached in discussions with clients in the various circumstances described.  Please keep in mind that every person’s family plan is unique, and that most of the devices described above are simply tools to be utilized to implement your personal planning.  The discussion that follows is intended only as a general overview. 

1. Single-No Children

If you do not have a large estate, have no children, and have a good idea as to who you want your assets distributed to, a very simple will may be the most effective approach for your use.  One possibility is to utilize the California statutory will.  A copy of this document is reproduced at Appendix A.  Keep in mind that you are not supposed to modify this document, and if it does not cover the plan for distribution of your property that you contemplate, you should consider another vehicle. 

There are also many publications and sites that will assist you if you would like to try your hand at preparing your own will.  Quicken and other vendors provide software programs which are available inexpensively at most software stores that can be used for this purpose.

If the size of your estate is more substantial, or if you intend to make provisions for a "significant other", if you are going to make provisions for those who have difficulty in managing money or minors, or if you are simply uncomfortable in preparing the documents yourself, then you should consider consulting an estate planning attorney.  In most instances the process is unlikely, unless it is very complex, to be a very expensive process.  After the time of your initial meeting, your estate planning attorney should be able to give you a reasonable idea as to the cost to implement your goals.

While I am happy to assist you if you are in the State of California, if you prefer someone who uses a different approach or is more geographically convenient, send an e-mail and I will be happy to suggest professionals you might want to contact.

2. Single With Children

Your life is substantially more complex if you have children (in a lot more ways than just in connection with your estate planning).  If you have children, I would strongly recommend that you plan on meeting with an attorney who is an estate planner to assist in preparing the documents and explaining the family planning alternatives available to you.  Should you insist that you would prefer that these matters not be handled through a professional, you might also consider the use of the California Statutory Will Form.  See Appendix E.  Alternatively, you might consider the use of forms provided by software vendors for the purpose of allowing simple wills to be prepared.  Please be sure that the document that you use is properly operative in the state in which you are a resident, and is not just a generic form. 

In most instances where you need to make provisions for your children, you are going to utilize either custodial accounts or trust accounts, you need to consider carefully the selection of guardians, and you will need to deal with a number of other issues related to your personal circumstances.  These are areas which are quite complex and obviously very critical for the well being of your children, and I would, as noted, generally recommend professional assistance.  The question of the magnitude of your estate is also of relevance here, but not governing.  The greater the magnitude of assets that you hold, the larger is the potential for controversy, and the greater the need for use of a professional planner.

3. Married Without Children

If the size of your estate is relatively small and you are married and have no children, you may be an ideal candidate for use of the Statutory Will in California.  See Appendix E.  The larger your estate is, or the more complex your plans for distribution of property, the greater the likelihood that you will need professional assistance.  If, for example, you were going to make provisions for nieces or nephews or disabled persons, or even if you are going to make transfers to parents, you might want to consider carefully the issues raised with respect to transfers to children and other matters discussed in this website.  Even if you only plan to leave everything you own to your spouse, you need to take into account the possibility that your spouse might die before you, leaving a question as to who your joint property is to be distributed to.  In many instances clients who are married but do not have children, do have properties that they have received by gift or inheritance through their parents, and they would like to preserve the character of this property so that it can be distributed to their siblings or parents at death.  These planning concepts raise complex issues and should be addressed by a professional.

4. Married With Children

Only those with an extremely modest estate (less than $100,000) might be good candidates for the use of the Statutory Will Form.  The complexity of dealing with provisions for a surviving spouse and for children make it almost mandatory to consider consulting with an attorney with expertise as an estate planner.  As the magnitude of your estate grows, this becomes more critical because you will encounter areas in which tax planning will become extremely important in assuring benefits for your spouse and children.  I would strongly recommend to couples in this situation that they expend the funds necessary to engage a professional estate planning attorney for assistance.