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Dying without a will or trust is called dying “intestate;” and, the intestacy laws of your state of residence, at your death, will determine who inherits from you and in what percentages. If you die with a well constructed and comprehensive will or trust plan, you get to decide who benefits from your estate. Furthermore, if you die with assets in more than one state, especially real estate, your assets would be subject to two or more sets of intestacy laws. This also means that you would have probate in two or more states, mandating two or more probate attorneys, two or more courts, two or more sets of probate fees, and the like. In addition, if you die without a will or trust, you have not appointed a personal representative or successor trustee to settle your estate. As a result, the probate court must step in and appoint a personal representative to wind down your financial life. This person has access to your personal and financial information. If you want to choose who has this confidential access, you need to name a personal representative in your will or successor trustee in your trust. Dying, without a will or trust, costs a lot of money and is a total loss of control. If you have not executed a will or trust, consult with a qualified and experienced estate planning attorney to determine whether a will or trust is the best solution for you and your family.

The State of California has prepared a generic estate plan for its residents who have not voluntarily prepared an estate plan for themselves. The terms of this estate plan can be found in the California Probate Code and the California Health and Safety Code.

Under the California Probate Code, the assets of a person who dies intestate (other than joint tenancy assets, community property with right of survivorship assets, and assets that have a beneficiary designation) will be administered in a probate court proceeding; subject, however, to a small estate affidavit procedure if the deceased person’s assets have a value of less than $150,000, as of this date, at the time of his or her death. The beneficiaries who are entitled to receive the deceased person’s assets are determined under the California Probate Code based on several factors, including: whether the assets are community property assets or separate property assets and whether the decedent was married and had children at the time of his or her death.

California has decided who most people would have liked to have designated as their beneficiaries if they had taken the time to prepare their own estate plans. However, if the deceased person was part of an unmarried couple who are not registered domestic partners, his or her significant other will not be a beneficiary of his or her estate under the generic California estate plan. Another drawback to the generic California estate plan is that there is no tax planning to ensure that the maximum amount of the deceased person’s assets go to his or her family members. Unfortunately, the California generic estate plan is just that, generic. It was not custom drafted for you and your family. It is probably not what you would have chosen for yourself if you had created your own estate plan. Furthermore, it does not cover all aspects of a properly prepared estate plan.

So, if you currently have the generic California estate plan, you should consider having a custom estate plan prepared for you that meets the unique needs of your family. At Leventhal Law Group, P.C., we meet with families to advise them about their estate planning options in order to create custom estate plans that meets their individual needs.  If you would like to discuss this or other trusts and estates issues, please contact us and speak to attorney Jonathan D. Leventhal. .  Click on this link to Email or call us at 818-347-5800 for a free consolation.

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