P lease recycle this paper.

A WILL IS NOT THE ANSWER by Martin

C. Johnson, Attorney at Law, MBA,RMA®, EA

Back in the day, for the average person the common estate plan was a Will, a Power of Attorney, and Healthcare Directive. If you were wealthy, you might have a Trust. But for most people if you weren’t wealthy, there was going to be very little in the way of assets left after their death, so a Will was going to be fine.

However, we are now living in a world where the average house that sold last month in this county was $770,000. Unlike our parents, it is estimated that we will be transferring between $30-$40 Trillion in wealth to our children and beneficiaries. A standard Will is not going to work for this kind of transfer of wealth.

Here are just a few of the problems with Wills: Where there is a Will, there is a Probate. Unless the total value of your assets that need to be probated is less than $184,500 and you have no real property, you will need a probate.

Probates are expensive and time consuming. The average probate in California takes over 1 year. The statutory fees are 4% of the first $100,000 of the estate, 3% of the next $100,000, 2% of the next $800,000. Fees are not on equity in property, but rather the fair market value. To make matters worse, these fees are paid to the attorney and the person who is the executor. This means that if you have an estate valued at $1 Million dollars at the time of your death, $46,000 will be paid to the attorney and your executor to probate your estate.

If you become incapacitated prior to your death, a Will is not going to help you because a Will is only effective after you die. Without a Trust, there is not a mechanism for you to appoint someone to be in charge of you and your finances.

A Will cannot hold assets for the benefit of a third party If you have a beneficiary that is receiving governmental benefits, may receive governmental benefits in the future, or needs a third party to control distribution of assets, a Will is not going to be able to do this without a court establishing a separate trust and providing for control of the trust after you die.

Real Property cannot be transferred by Will without court approval. If you have real property, it is still going to be cheaper and faster to have the property in a trust than going through the probate process.

A will is not a substitute for a trust. Even if you do not own real property, most people need to have a trust in order to avoid a conservatorship if they become incapitated prior to death. It is much better for you to select the people who will be in charge of you and your finances versus the court making that determination at your expense.

If you have questions about estate planning or need help reviewing your Trust, we offer FREE 30 minute consultations in our Walnut Creek office. This article provides only general legal information and not specific legal advice. The information contained is not a substitute for a personal consultation with an attorney. 360 Estate Planning, Inc, Phone (925) 289-8837; 1600 S. Main St., Suite 100, Walnut Creek, CA 94596. © 2023 Martin Johnson