Experienced Estate Planning Attorneys

The 3 Primary Benefits of Estate Planning

Estate planning not only makes things easier for your loved ones if you become incapacitated or when you’re gone, but it also does these three important things.

Benefit #1:

Securing management of your health care and finances if you’re incapacitated

Benefit #2:

Fulfilling your wishes

Benefit #3:

Avoiding probate

As we all know, your life situation can change, and external factors, like changes in government regulations and tax laws, can also change. That means it's essential to regularly revisit your estate plans, ideally every three years, to help ensure that you don’t make a potentially costly mistake that could negatively impact you and your family.

Why You Need an “Estate Plan”

Everyone has something, so everyone has an estate. This means that everyone should have an Estate Plan, which often includes several important parts, including a Living Trust, Powers of Attorney for property and for healthcare, a Living Will, and a Pour-Over Will, among other documents. The absence of a well-thought-out plan can lead to chaos and turmoil.

First of all, it’s important to know that an Estate Plan serves a more profound purpose than just determining who gets your assets upon your death. An Estate Plan is equally important during your times of illness or incapacity. Moreover, it becomes crucial for anyone who relies or depends on you for support.

Consider this scenario: If you got in an accident and unconscious in the hospital, who would have the legal authority to manage your financial affairs, pay your bills, care for your young children, oversee your business, or make critical healthcare decisions on your behalf? While you may assume it's your spouse, what if they, too, were unable to act? If uncertainty surrounds these questions, it's a clear indication that you require an Estate Plan.

Estate Planning Prevents Potential Family Conflicts

Consider this scenario: If you were to pass away suddenly, have you ever wondered about the fate of the house you're currently allowing your son and his family to occupy? Could it potentially ignite disputes among your other adult children, or would your son assert some form of rights over the property? If the outcome seems uncertain, it is a clear indicator of the need for an Estate Plan with a Living Trust.

Without a comprehensive Estate Plan in place, here's what could happen: your loved ones might find themselves fighting it out against each other in what's known as "probate court."

Consider this situation: Do you have a daughter whose marriage is on the rocks, and you worry that her potential future divorce might impact the inheritance you'd like to leave her decades from now, when you might not be around? Will her ex-spouse be able to go after the money that your daughter will inherit from you? If the situation appears unclear, it's advisable to consult with an experienced Estate Planning Attorney without delay.

The Consequences of Not Having an Estate Plan

When you have no Estate Plan and Living Trust, the consequences can be significant and painful. Your loved ones may find themselves forced to navigate the complexities of "probate court" to fight over their rights in a very public setting – in pursuit of your home, as well as your bank accounts, your investments, and potentially even the guardianship of your minor children and other dependents.

In the event that you are still alive but incapacitated, they may be forced into the difficult position of watching you at your bedside while also being forced to fight for control over those various aspects of your life mentioned above. This also includes decisions related to your health and end-of-life choices.

Regrettably, engaging in any legal battles for these reasons typically entails substantial financial costs, often reaching staggering amounts. It is very expensive. Not only a lot of money, but coupled with the expenditure of months, or even years, of everyone's time. Moreover, the destruction and toll on even the closest family relationships along this arduous path can be profound and irreparable.

Our Estate Planning Process

When you are ready to work with Serva Law Group to create your Estate Plan, here are the keys steps in the estate planning process we’ll go through with you:

1. Initial Call

2. Share Your Story

3. Estate Plan Drafting and Delivery

A Comprehensive Estate Plan Includes These Key Documents:

For most of us, the core part of an Estate Plan centers around a Living Trust. The term “living” is applied to this trust type because it becomes effective and safeguards your interests while you are alive. It also survives beyond your own death, and in certain instances, extends beyond the lifetime of your immediate heirs.

We often analogize and liken a Living Trust to a special safe deposit box in which certain assets are placed in it, granting you and your “successor trustees” control and authority over these assets. A Living Trust anticipates both your potential incapacity and your eventual death, thereby implementing your long-term wishes and desires. Notably, a Living Trust is not a mystical concept but rather a well-recognized mechanism within the American legal system, lauded as the most effective way to design your estate planning and protect your legacy for the benefit of your chosen individuals and causes.

Throughout your lifetime, you maintain full control over this safe deposit box and you have full control and power to make changes because it is a “Revocable Living Trust.” Importantly, when incapacity or death arises, the transition of a Living Trust to the next generation can be executed with ease, usually without court or judicial intervention.

A Pour-Over Will is a last will and testament that serves as a “safety net” to capture any assets that may not have been included in your Living Trust at the time of your passing (but should have been) to be transferred into your trust. For instance, if you temporarily remove your home out of your trust to refinance the mortgage, and you inadvertently forget to retransfer the property back into the trust via a deed, the Pour-Over Will ensures that the home’s distribution aligns with the trust’s provisions, rather than being subject to your state’s intestacy laws. Dying ‘intestate,’ or without a Will, can lead to disastrous consequences for those you leave behind.

However, relying solely on a Last Will and Testament is insufficient for a comprehensive Estate Plan – in fact, it lacks the legal binding of a fully effective document. In practice, a Will essentially resembles a letter addressed to a probate judge, outlining your wishes, but it’s ultimately the judge, a person you will never meet, who makes the final decisions. Moreover, a Will fails to address the critical issue of what occurs if you become incapacitated.

If you have just a Will, potentially a generic Last Will and Testament template downloaded from the internet, your heirs may find themselves facing substantial expenses, including legal fees and court costs, along with a lengthy probate process, typically a year or more. Additionally, it does not incorporate tax planning measures, which could, in itself, pose a significant challenge for your heirs.

“Powers of Attorney” should not be confused with legal professionals, or attorneys.

Instead, these documents grant specific individuals the authority to manage various aspects of your affairs in the event of your illness. This authority is enduring and resilient, allowing them to handle matters not covered by your Living Trust. For instance, they might be designated to collect registered mail on your behalf, settle your financial obligations, and select a nursing home if necessary. They may also be empowered to make decisions concerning your business and financial assets, such as managing your IRA, 401(k), 403(b), digital assets, and various social media accounts, such as Facebook, Twitter, blogs, Instagram, Dropbox, and more.

These designated individuals are commonly referred to as “attorneys-in-fact,” a term that does not relate to licensed attorneys or lawyers in any way.

Another important document within your Estate Plan involves the designation of “durable powers of attorney for healthcare decisions,” which come into play when you are unable to make those choices for yourself independently. These decisions can encompass critical matters such as whether to proceed with a new medical procedure or continue a course of chemotherapy. These documents may go by different names in various states, such as “advance healthcare directive.” Typically, the individual to whom you grant this authority is referred to as your “healthcare agent.”

While these topics may appear daunting, they are of utmost importance. Failing to designate someone to handle these decisions means that someone else will ultimately be tasked with making them. Why leave such critical determinations in the hands of a doctor, a hospitalist, or a judge? Wouldn’t you prefer to have the autonomy to choose the person you trust to make these decisions, especially when your well-being may hinge on them, even during a relatively brief period of incapacity?

A Living Will (not to be confused with a Living Trust) serves as a document that outlines your preferences in the event of extremely dire medical circumstances. Your attorney can engage in a detailed discussion with you, delving into specific issues, including how these scenarios typically unfold in real-life situations.

Think of a Living Will as a kind of consent form that you provide to your loved ones, granting them the authority to make end-of-life decisions when the time comes. However, it offers you the opportunity to express more than a simple directive like, “If there’s no hope, terminate life support.” Instead, it empowers you to convey your wishes regarding matters such as the use of breathing and feeding tubes—decisions that may hold profound personal significance.

In the absence of a Living Will, you may be placing your loved ones in the position of making agonizing choices, potentially burdened by guilt, while also exposing yourself to the possibility of prolonged suffering.

The welfare of minor children, those under the age of 18, is a matter of paramount concern for most individuals. If you are a parent with minor children, it is a fundamental parental duty to establish legal documents that designate a guardian (along with alternate choices as backups) in the unfortunate event of your death or incapacitation.

When you have nominated a guardian as part of your estate planning, the court will most likely respect your expressed preferences.

It is important to note that guardianship encompasses two distinct aspects: physical custody, which pertains to guardianship of the person, and guardianship of the estate, which involves overseeing financial matters. Courts typically treat these responsibilities separately, and you may have a preference to address them separately in your estate plan as well.

A HIPAA (Health Insurance Portability and Accountability Act) authorization grants designated individuals access to your medical records. Consider the significance of such a document: While you may not wish for a home health worker to make medical decisions on your behalf, you may want them to have the ability to retrieve lab reports and engage in discussions with nurses about your care. In the absence of such authorization, you are unquestionably creating an avoidable obstacle to your own healthcare.

Your Estate Planning Attorney might generate additional documents tailored to your specific circumstances. These could include asset protection measures if you are anticipating divorce, bankruptcy, or legal disputes involving yourself or your heirs. Special Trusts and strategies may also be needed to protect the interests of beneficiaries with special needs or disabilities.

It’s important to understand that an Estate Plan isn’t just a single document, but rather an interconnection of appointments, nominations, designations, directives and instructions that dictate who will perform various roles and how your assets will transition from one stage to another. Once again, it’s important to emphasize that this is not a straightforward or unchanging set of documents; rather, it must be carefully and properly created, stored, maintained, and periodically updated over time.

Estate Planning

Frequently Asked Questions (FAQs)

The best kind of estate attorney has specialized experience and a commitment to thoroughly understand the dynamics and concerns within your family. They will engage in in-depth discussions to clarify the particular challenges unique to your situation, those which you and your loved ones may encounter when inevitable circumstances arise. Furthermore, a comprehensive estate planning approach requires a full assessment of your assets to facilitate thorough tax planning for both your benefit and that of your heirs.


A good Estate Plan is an individually tailored endeavor, designed to account for your existing family structure, while remaining abreast of the latest tax regulations and recent legal rulings. A good estate attorney will also collaborate with you over the years, ensuring that your plan and Living Trust remain current and relevant. It’s crucial to understand that no automated Estate Planning Tool or generic “Living Trust Template” can effectively replace this personalized and ongoing guidance. Attempting a do-it-yourself (DIY) approach through online searches and generic resources may potentially lead to adverse outcomes for your loved ones, spanning decades into the future.

The duration required for creating an Estate Plan can vary significantly, contingent upon the intricacies of your individual circumstances, which a competent attorney will take the time to fully understand. Factors such as divorce, remarriage, estranged children, children with special needs, a fragile marital situation, or the necessity to protect your estate against creditors all contribute to the complexity. Achieving precision in this process is essential, and it’s equally vital to continually adjust it as life circumstances evolve. Generally, the entire process of creating a foundational estate plan spans a few weeks, commencing with initial steps like an initial consultation and concluding with the signing of Estate Plan documents.
Once you are seriously ill or pass away, the window of opportunity to establish an Estate Plan becomes unavailable. Your children cannot create a plan on your behalf once you are incapacitated or have died. Unfortunately, our office frequently receives inquiries from children who are uncertain about the course of action to take when their parents have outlined a plan but failed to finalize it or left no documentation behind. Sadly, we must convey to them that they are likely to find themselves entangled in legal proceedings.
In most cases, non-retirement accounts should be placed within a Trust, even your primary checking account. However, there are numerous exceptions, such as business accounts. It is crucial to have a conversation about this matter with an attorney, as financial situations can vary widely.
As a general practice, all your real properties should be titled to a Trust rather than to a person, but it’s important to discuss your particular situation with a qualified attorney. After a death, many families suffer confusion and long, expensive court processes when the deceased person failed to move houses, land, and other properties into their Living Trust before they died. Remember that from a legal standpoint, what’s actually written on the title to a property is generally what controls and counts as “ownership,” so when you create a Trust to hold properties, the title must be changed.
In most cases, a Trust established in one state will work in another state, but there may be reasons to consider changing the Trust if you move to another state. You should review your Estate Plan with an attorney licensed in your new state when you move. Our team of Serva Law lawyers holds licenses in both California and Arizona.
Yes. As your family dynamics and life circumstances evolve, it becomes crucial to ensure that your plan remains current. For instance, significant life events like births, deaths, or divorces may require changes to your plan. These revisions require the expertise of a qualified attorney, along with the precise legal language, to ensure that your family can circumvent the burden of stress, probate, and legal disputes following your passing.

Typically, it is better to appoint a single Successor Trustee for a Living Trust, although having two Successor Trustees can be feasible if they maintain an exceptionally harmonious relationship. On the contrary, involving more than two individuals is likely to introduce complications. It’s important to recognize that the selection of a Successor Trustee is a substantial decision that warrants careful deliberation. Do not designate someone as a Successor Trustee merely as an “honorary” gesture. Instead, opt for an individual who will approach this responsibility with the utmost seriousness, diligence, honesty, and prudence. Throughout the Estate Planning process, a good attorney will assist you in identifying the most suitable Trustee. Additionally, you might consider the inclusion of a Trust Protector with the authority to replace the Trustee if issues arise with your initial choice following your passing.

A Living Trust is often much superior to simply a Will when it comes to the efficient transfer of your assets to your loved ones, and it serves as the cornerstone of a comprehensive Estate Plan. Relying solely on a Will leads to subjecting your family to probate court proceedings for the settlement of your estate upon your passing. In essence, a Will is akin to a letter penned to a probate judge, intended to influence their determinations. In contrast, a Living Trust empowers your family to sidestep probate proceedings entirely.

Moreover, trusts maintain a high degree of privacy. Once your Will is submitted for probate, it becomes a publicly accessible record, open to scrutiny by anyone interested in examining the extent of your wealth and the allocation of your assets. If you wish to maintain the confidentiality of such details, establishing a trust to hold your property is the better course of action.

For starters, leaving behind no documentation whatsoever, not even a Will, spells disaster for your family in the form of “intestate succession,” a situation in which the state intervenes through the judicial system to determine the distribution of your assets—deciding who receives what. However, even a meticulously created Will falls short when it comes to facilitating a smooth transition of your accounts, properties, and other assets to the next generation. Relying solely on a Will forces your family to navigate the complexities of probate court, essentially reducing the Will to little more than a letter addressed to a probate judge, outlining your wishes, and leaving the final decisions to the judge.

The concept of the Living Trust dates back many years, and it has proven to be a lifesaver for countless heirs, sparing them endless hours and incalculable sums of money. It stands as a tried-and-true strategy that everyone should contemplate adopting—a revocable Living Trust. With this approach, you can establish a plan that enables your heirs to circumvent probate court and ensures that trust assets are distributed according to your intentions.

Trusts can be either revocable or irrevocable. A living trust is generally revocable so it does not offer protection from creditors or estate taxes. Irrevocable trusts, on the other hand, cannot be changed after you sign them, and they transfer legal ownership of your assets to the trust itself. That transfer of ownership can protect your assets from anyone who plans to sue you, including creditors.

Before asking about the cost of a Living Trust, please first ask yourself these questions: Is there a possibility that one of my heirs might encounter a divorce? Is my spouse equipped to manage my business in the event of my incapacity or death? Does my spouse own real estate under their individual name? Do I have a child who lacks the capacity to handle their finances due to disability, addiction, or undue external influence? Is there a likelihood of disputes among my children over the ownership of my house?

Taking all these considerations into account, one must wonder whether their Living Trust will be carefully created to make it easier for the next generation, or will it accidentally introduce problems and conflicts. Such complications could potentially lead to substantial legal expenses, amounting to tens or even hundreds of thousands of dollars, not to mention the hundreds of hours spent in courtrooms.

That being said, it raises the question: What is the comparative cost between probate and the initial expense of Estate planning and Living Trust creation? Probate proceedings in California typically incur costs amounting to around 5% of the estate’s value—equating to a lot of money. For instance, on a $2 million estate, this would translate to approximately $100,000. Conversely, compare that to the cost of Estate planning with the establishment of a Living Trust.

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