Orange County California Trust Litigation Legal Malpractice Attorneys
Andres, Andres & Moore, LLP
Estate Planning FAQs.

 

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1.  My only substantial asset is real property, do I need a trust?

If you do own real property with the title in your name alone, valued at more than $10,000.00, you will need to probate your estate to pass title on to your heirs. If your real property is in your trust, you avoid probate.

2.  I don't own any real property, when I die will my heirs have to probate my estate?

If you do have more than $150,000.00 in personal property, you will need to probate your estate in order to pass the personal property to your heirs. If your personal property is in your trust, you avoid probate.

3. How do estate taxes apply to trusts?

Assets transferred to a trust will count as part of the deceased person's estate. Each person now has an estate tax exemption of $5,240,000.00. If a married person dies with an estate (1/2 community property plus seperate property) of less than the exemption, the surviving spouse may apply the unused portion to their exemption. This process is called "portability."

4.  Can I change the terms of an existing trust?

A revocable living trust may be amended while both of the people who set up the trust (the settlors) are alive. It may also be revoked by either of the settlors. After the first spouse dies, the trust may be divided into two trusts: one for the surviving spouse and one for the deceased spouse. The deceased's trust is now irrevocable and non-amendable. But the surviving spouse may revoke or amend his/her trust. If the terms of the trust leave the trust a single trust, usually the terms may be changed after the death of the first spouse.

5.  Can I add or remove assets from an existing trust?

Yes. Assets may be removed or transferred into a living trust while both of the creators of the trust are living.

6.  Is it more difficult to buy or sell assets if they are in a trust?

No. You may buy and sell assets just as you always have, but you do so in your name as trustee rather than in your name as an individual.

7.  Do I need a will if I have a trust?

The usual procedure is to prepare a "pour over" will with a trust. The pour over will leaves all the assets (not already transferred into a trust) to the trust so that if there are any overlooked assets or later acquired assets not transferred to the trust, they will be added to the trust.

8.  Who will administer the trust while I'm alive?

You may name yourself trustee until your death. If you are married, you and your spouse may be the co-trustees and the survivor of the two of you may continue on to be the trustee after the first spouse dies.

9.  If I'm the trustee, who will administer the trust after I die?

You may name a successor trustee when you draft your trust.

10.  If I change my mind about who the trustee or the beneficiaries should be, can I change them?

Yes. You may change trustees and the persons you want to be your beneficiaries while you are living.