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Universal Estate Planning Questions

By Jonathan Huber

I’m not your typical lawyer.  I started practicing law over 15 years ago with the simple belief that every person matters, their stories matter, and their plans matter.  Every life is unique, and I have enjoyed the privilege of working with clients from very diverse backgrounds.  What I have discovered in that process is that every life, family, and community has a story to tell and a potential legacy to leave behind. My team and I love working with clients to communicate and share their legacy with estate planning.

Regardless of a person’s family background, I find that there are four nearly universal questions that come up:

  1. How can I guarantee my children won’t fight after I’m gone?

There are no guarantees, but there are ways to minimize the potential for conflict after you’re gone.  When clients express a concern that their children are predisposed to conflict, we often recommend the appointment of a neutral fiduciary (executor/trustee) to manage the administration and distribution of estate assets. This person can be a trusted family member, friend, or a professional fiduciary. We also encourage clients to be as specific as possible in designating gifts of personal property items such as jewelry, art, and miscellaneous collectibles. I strongly believe that many family ties disintegrate due to misunderstandings about who was intended to inherit (or not inherit) tangible items with relatively insignificant monetary value.

   2. How can I create an estate plan that will avoid the probate process?

There are several ways to avoid the dreaded “probate” process.   Here in California, the use of revocable trusts (also known as “living” trusts) is very popular. A trust provides a vehicle for transferring assets to beneficiaries without triggering any court involvement, provided assets were properly transferred into the trust and provided there are no disputes over the terms or administration of the trust. Probate can also be avoided by effectively designating beneficiaries on financial accounts. Other probate avoidance methods exist, such as adding individuals as joint tenants on real estate or financial accounts or naming beneficiaries on a recorded Transfer on Death Deed, but the pitfalls of these techniques should be carefully analyzed before being used.

  3. Whom can I trust to serve as my executor or trustee?

This is the most important question, in my opinion, to ask and answer. People commonly default to naming their children in chronological order, but this is often not the best plan. Conversely, naming all children as co-agents can result in an unwieldy and unnecessarily time-consuming administration. We encourage our clients to objectively consider the aptitudes of their children and any potential relationship challenges that could exist. Although it is most common, naming a child as the executor and/or trustee is not always the right decision. A trusted family member or long-time family friend – or even a professional fiduciary – could be a much better fit for this important role and could act as a neutral party to help promote family harmony during administration of the estate.

  4. How difficult is it to create an estate plan?

It’s not hard, but it does require some thought. Our firm, like most, provides an initial questionnaire to prospective clients to complete prior to a free initial consultation.   During the initial consultation, the estate attorney and prospective clients will typically discuss the clients’ family, goals and assets. Following the initial meeting, the clients may have some “homework” to complete, or the attorney may be ready to start drafting. During the process, we encourage and welcome an open dialogue with our clients’ investment advisors and accountants to ensure that the plan is consistent with the clients’ overall financial objectives and all parties understand the client’s plan.