Advice about Wills, Estates & Trusts

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Questions Estate planning-older parents with young children Deciding who the trustee should be We disagree on how to pursue a will and trust Estate planning with non-citizen spouse Creating a Trust or Living Trust Writing a will; don't want my family making claims Contesting my father's trust Estate planning for unmarried couple Living Trust or Will? Choosing Executor/Trustee for Wills Cost of a lawyer for estate planning

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Estate planning-older parents with young children

Jan 2013

We are parents of three children. Our eldest is in college and our youngest is in preschool. We are not spring chicks and by the time our youngest is in college we will be well into retirement age. We're revising our living will and looking to hear from people who are older parents with younger children and issues we should think about when planning our living will. AARP discount on preschools

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As a Certified Specialist in Estate Planning, I often see situations such as yours. Do you mean a ''living will'' wherein you make a decision about end-of-life decisions and a health care proxy? Often couples designate the other spouse as their decision maker. You can get a form from Kaiser or the medical association and do it yourself easily. Or do mean testamentary documents which act like a will, stating which of your children inherits? Those documents usually consist of a regular will or a revocable living trust, or both. Only a lawyer may prepare these documents for another person. Perhaps you are thinking of financial planning, college funds, retirement funds etc.- this is a separate area, which is the provenance of anyone from insurance salesmen, stockbrokers, banks and storefront businesses. Lynn

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There are a number of issues to consider when your children are widely spaced in age. For instance, sometimes people want to equalize the post-college inheritance by holding off on dividing the trust into shares for their children until all children are age 25 or so. (You'd weigh the potential disadvantage for the older child of having to wait for inheritance against the potential disadvantage of the younger child whose entire inheritance might otherwise be consumed by education.) A separate education IRA for the younger child is another popular approach. It's a good idea to discuss this thoroughly with each other, so that you're clear about what you're trying to accomplish, and then sit down with an estate planning attorney. There are a lot of us on this list, and most of us offer free consultations; you really have nothing to lose. A trust isn't something you should try to do without an attorney anyway, so perhaps this is a good way for you to begin the conversation. Kathleen

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Deciding who the trustee should be

Jan 2013

Hello, we have a 2 year old and we are going through estate planning (living trust) with the lawyer right now. A bit of background: Both my husband and I have no siblings that we can trust. So they are out of the question in terms of guardian or trustee. We are naming a close friend, who is 10 years older and has a teenage daughter (who has experience dealing with only child and would have the space, since the daughter is near college age), as guardian. But now, we have to make a decision on the trustee. We are considering using a bank as trustee, and naming my mother-in-law (who is overseas in Canada) as co-trustee while she is alive. First, any recommendations on banks? It seems like no one posts reviews on banks for their trust administration. Is that preferred over brokerage firms? Second, can a foreign national (Canadian citizen) serve as co-trustee? Thanks! SeekingProfessionalTrustee

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I am a Certified Specialist in Probate, Estate Planning and Trusts. Many of my clients are in your situation, although mostly because they are single and have had no children. In the case where there is no close, trustworthy adult to name as a trustee, the makers can name a private, professional fiduciary. Private, professional fiduciaries are professionals who administer estates and trusts as a business. Some are former bankers, some moonlight from their day job in the probate court, some are lawyers, but all are required to perform the duties of a trustee as a trusted fiduciary. See the organization for Professional Fiduciaries of California Association. PFAC.org The trust department of a bank makes a good fiduciary for a wealthy person. Usually banks require an estate with minimum of $1,000,000 in liquid type assets (not houses). They also charge minimum annual fees, which may be several thousand annually PLUS a percentage of the assets. Mechanics Bank has a trust department. Rather than name a specific person who may no longer be practicing years into the future, I draft my clauses to state that the majority of beneficiaries who are over 21 select a fiduciary from the association who lives in the area. Talk to your lawyer and look at the association website which will give you more information. Lynn

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We were in a similar situation when establishing our trust for our now 6 y.o daughter and were recommended (by our attorney) to use Mechanics Bank as our trustee which we did. A few years later, we also changed our checking account to Mechanics Bank (during the push to go to smaller, more local banking). We felt this would make it easier in the event something happened to us - that we would already have a long-term connection to MB. Check out their website and the section on Wealth Management. Good Luck......

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Your questions are complex and it is very important to get expert advice. I recommend that you talk with a good estate attorney. We found kathleen hunt at unique law to be excellent to work with. You can see other recommendations for her on this list serve. She understands complex situations. Anonymous

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My Grandfather left $ in a trust with a Bank as trusteee for my uncle who has some developmental challenges. He died in '76 and my uncle is now in his 60's. When the Bank was trustee, they were very frustrating to deal with. they did not treat the money like they cared and it was not a good way to go. given my mom and her family's experience I would not make a bank a trustee.

I do wonder why, if you would trust this person with your child, you would not trust them with the money? an estate lawyer would be able to tell you how to instruct the trustee on how the money is to be used, how much to keep aside until your kid is a certain age or does things like go to college and when you can give your child full control of his or her inheritance. We have family as the guardian and a friend as a back-up but we also stipulated that who ever has the children also controls the money. it is very frustrating to need to fund an activity or a problem and constantly have to call someone else. don't make the burden more than it needs to be. anon

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We disagree on how to pursue a will and trust

June 2012

It has been 6.5 years since our daughter was born and I have had ''put a will in place'' on our family to-do list for just as long. Now we also have a 3.5- year-old son and I get really freaked out periodically that we have nothing legal in place in the event that something were to happen to my husband and me. If it were my decision alone, I would have paid a lawyer long ago to draft a will and trust, but my husband disagrees that we need to pay someone to take care of this issue. He has always asserted that we just need some software and can do it ourselves. Once a few years ago I bought the Willmaker software but never completed it. I spoke to a friend who is a lawyer (albeit, not an estate lawyer) and he told me that he would recommend getting real, live legal assistance to do it ''right.'' I am wondering if anyone out there has had this impasse with their spouse and how you resolved it. Is it really possible to put everything we legally need in place on our own? Why pay a lawyer hundreds and possibly thousands of dollars v. doing it yourself? Unsure about the ''right'' will

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My husband and I had a somewhat similar disagreement. I signed up for an evening course through the Berkeley adult school on wills and learned enough to convince him it was a good use of money. It has been a big relief to me, although it took us several years to get it done as well. information is power

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Wow, you described our situation exactly. We finally got the will and trust done when our kids were 7 and 2. My employer offers legal insurance, and though I mostly think it's a bad investment, I signed up for it for a year to bring the issue to a head. It was a lot easier to get my husband to come along when it wasn't an issue of paying the lawyer nearly so much. (There was still the problem of feeling ignorant and not in control that I think my husband was salving with his hopes for will software, but when the money was less of an issue, we could get past the other bad feelings.)

So do you have that option of legal insurance? It could mean signing up in open enrollment and not starting until Jan. 2013, but at least you'd have a sense of not being stuck. Legal insurance also solved my huge mental block about which of the gazillion lawyers to choose. The insurance came with a list of lawyers, and I picked the closest one to my home who'd been reviewed on BPN. I think that's OK for a basic will and trust.

The other thing I learned from the process -- at least, the lawyer said this, and I'm willing to believe it -- is that there's a particular reason to do this in CA if you own a house, even if you owe the bank lots on your mortgage, because of the way real property is valued if you die. I can't give legal advice, but it came across as a good reason to go ahead and do the will and trust. been there

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I am an attorney with extensive experience preparing wills and trusts.

If you didn't have kids, or any real estate, then you could absolutely do it yourself. In that case, you'd likely only need a will (though a quick consultation with an attorney - which is usually free - would be a good idea just for confirmation). Nolo is fine for those circumstances.

But if you need a trust, well, the Nolo software just doesn't ask enough questions. So you might wind up with a document that looked just fine -- but that doesn't work for you or your particular situation as well as it could. Worst of all, you'd never know it; only your heirs would find out.

California wills are meant to be as easy as possible for non-attorneys to draft. That's why Nolo software is so good with wills. Still, people make simple mistakes all the time with wills, and their estates wind up in court as a result. People notarize their wills instead of having them witnessed; they leave off the ''self-proving'' clause; people even omit disfavored children instead of specifically disinheriting them. Seemingly-minor errors like these can result in a legal decision that no valid will exists at all.

A trust is more complicated. It must be funded to be valid, and it must be structured in such a way as to allow the trustee to do the job without needing to involve the court. It should specify the best tax scenario for the individual situation. There should be safeguards to ensure that a funding mistake doesn't send the entire estate into probate court. It should allow for the possibility that a beneficiary may have special needs if he/she is disabled at the time of the inheritance. (A person receiving government benefits for disability, for instance, can't have over $2000 in resources at any time without losing those benefits, perhaps permanently. An inheritance that isn't properly structured can thus do a great deal more harm than good.)

Because California wills are meant to be relatively straightforward, Nolo software can handle the various scenarios without trouble. California trusts are not so designed. The Nolo software just isn't up to the much higher level of scrutiny and understanding that's needed for them.

The Nolo site itself says to see a lawyer ''if you have a thorny estate planning issue'' . . . but people often don't know that they have a ''thorny'' issue. And how would they know? There's no easy way to distinguish between run- of-the-mill issues and ''thorny'' ones if you don't have a background in this area.

It's absolutely true that lawyers cost more than doing it yourself. Doing your estate planning with a lawyer still costs less, in both time and money, than putting your heirs through the probate process. Kathleen

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You can do it yourself if your assets are under $250,000 using something like Quicken or Nolo software. If you own a house or have a lot of other assets, you need a Living Trust (not a will) and will need legal services. Note that even if you have a living trust, you will STILL need a Will as well (that you can draft on your own) because a living trust does NOT let you specify who gets custody of your kids. The reason you need a living trust with large amounts of assets it to avoid probate court times of up to 2 years (where your assets are frozen and lengthy and expensive court proceedings ensue - these are avoided with a living trust).

also, please don't forget to have a document signed and witnessed that says where you kids go if both you and your spouse die, for example, in a car crash while out on a date, for immediate short term care of your children until the long term legal guardians arrive. otherwise your children will be placed in child protective services. (obviiously, this only becomes an issue if your long term guardians do not live nearby, as is the case for us).

also don't forget to have an advanced health care directive notarized. you can draft this on your own as part of the willmaker software. Prepared mama

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Maybe you should figure out what would happen if you and your husbands lacked a will. When there is no will the state has specific guidelines around what happens to your estate and guidelines about who inherits. This to me looks like far more mess for your relatives - and who will care for your children financially while the potential YEARS it takes for a slow moving bureaucracy to make decisions about your assets?: http://www.ca-trusts.com/probate.html

Note what the attorney's fees would be AFTER you die. Then compare the legal fees to the ones that will be taken out of your assets if the state takes over. Then don't forget to factor in that legal processes are SLOW. Will it cost less to pay for an attorney now or have the cost of one forced upon your family later?

If you want family friends rather than next of kin to care for your children or be in charge of the finance for your children, and you'd like things to go quickly and smoothy, then you should have a will. It's not rocket science, but if you are not a lawyer and you have enough assests (life insurance policy, own your own home, have retirement or college savings) then I would go with a will over leaving it to the state.

Fill out your form with the software you have and shop around for a lawyer to look it over. Yes, a lawyer. Because why go through all the time to figure this out and have something be invalid and have those legal fees and court filing fees add up for your family anyhow? Do some actual research and call a minimum of 3 lawyers who you get recommendations for and ask them what they actually cost to make sure your will is legally sound. In the very least, find a law clinic at one of the 3 law schools in the bay area. fan of wills

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My husband and I went through the same thought process. We also bought the software, to eventually realize it was not going to happen on our own. A trust and its laws are too complicated to handle on your own. Take a Trust Attorney: it is worth the thousands of dollars you'll spend! Ours explained to us clearly all the little details about the laws, all the options we had with our trust, and what was the best for us given our situation. Best of all, we paid a flat fee, and can have our lawyer modify the trust at no charge. She is also always there if we have any questions.

Finally, if we happened to lose our documents, we know she always has a copy. And if we happened to both disappear at the same time, we would have someone there to advocate for our children, and make sure everything would be handled legally.

In our case, we paid $2000, but well worth it. I cannot recommend any lawyer because ours was on the South Bay. Good luck with it, and just do it! Done in no time

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There is an Alameda lawyer, Casssandra C. Massey, who gives free workshops about estate planning for parents of young children. The workshops are held in various bay area locations-I went to the one in Alameda. Ms. Massey is a young, married mother of 2 and is very personable. The workshops last less than an hour and are full of useful information. She offers a big discount for new clients who attend one of her workshops, if you do decide to retain her. Contact Ms. Massey at 510-992-6773. Her law office is at 2219 Santa Clara Ave., Suite C, in Alameda. Her website is www.masseyestatelaw.com and she has a free e-mail newsletter that you can subscribe to. DC

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We used nolo press's willmaking software and are settled on it doing the right thing. of course we have not died and cannot test the thoroughness of the will, but we have a straightforward estate and will - it all goes to our children. no fancy mumbojumbo, no one excluded, just simply passes to our children. If you have a large estate and/or are excluding a child or sibling who might want to fight the will, then you may want to consult a lawyer. but if it's simple and family mtters are fine, then a simple software will will suffice IMO. not dead yet

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unless you have unusual circumstances (children from previous marriages, don't want to leave your assets to your spouse or children and don't anticipate any contrary family members contesting it) you can definitely do it yourself. I have been using the Nolo press book and a couple of others from the library. But the caveat is that yes it will probably take you longer as there's no-one pushing you - as evidenced by the fact that you haven't done it yet. I started doing it myself over a year ago (lots of procrastination)! I finally have the forms printed and ready to sign but still have not taken that final step! And once that's done I still need to move all or assets into the trust or update beneficiaries to the trust. When I considered doing it myself I asked by boss who has a law degree if he thought I could do it myself and he said yes. And going through the forms I think yes you can if you are the kind of person who is comfortable getting into the detail of something like this. Feel free to reach out to me if you want to pick my brain some more on this. ore

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You don't just need a will, you also need a living trust. A will not not protect you from probate court, which ties up all your money and belongings after you die, and also charges you a % in tax/fees based on the full value of what you own. That means if you own 50% of your house, the probate will charge you the % based on the FULL price of your house. This amounts up to a lot of money! A good living trust will also set up provisions like guardianship for your children if you die or are incapacitated, and allow the guardian to have access to money to take care of the kids, etc.

I took a free class on living trusts in Alameda run by the estate lawyer Cassandra Massey, at Tot Tank (an awesome baby goods store!). Go to the Tot Tank website to look up her next free class. It was really informative. We decided to go with Ms. Massey, and paid $5K for our living trust, but you don't necessarily have to use her services after you take the class. Yes, it was pricey, but she did everything for us, and does not charge an hourly rate for phone calls (it was all lump sum), so we could call her anytime with questions. Perhaps other lawyers are cheaper, but be sure to use one with good recommendations. You cannot do a living trust by yourself, get a lawyer.

Consider this as a long loooong term future investment to protect the interests for your children. Depending on your assets, paying $5K will save your survivors much more in probate taxes later. It won't help the person who is dead, but it will protect the survivors, and this includes the kids and the surviving spouse.

Tell your husband to start taking care of you and his kids and make a living trust now!

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I just got mine completed after putting it off for 25 years! I even had legal insurance to cover it and still just never got around to it. Like you I pondered a do-it-yourself kit but that made it all the more likely I would never do it. 

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The best route is www.legalzoom.com. It's around 69 dollars and a half hour online for a basic will. You'll have the assurance of a will (which you should have) and your husband should be fine with the price. A few years down the road as your circumstances change and perhaps grow more complex you can revisit it. On that note a basic will should usually suffices for most families. However if you there are special circumstances, such as a large estate, or wanting to leave a specific family member out, etc.. than it may be best to find an estate attorney. Next up will be the fun discussion about life insurance. David Financial Advisor

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I recommend you check out http://www.amyshelf.com/workshops.html. Amy Shelf is an estate planning lawyer (and an amazing all around person) who gives ''Panic Free Estate Planning'' workshops and potlucks where you can get the basic estate planning documents together and talk about why it might be better to hire a lawyer (or not) to create a trust for your family. I used to work with Amy at a fancy law firm in SF but she is a solo practitioner now and she is also a mediator (which might be something you need to help resolve this with your husband, ha ha). She practices in Bernal Heights in SF, but also occasionally gives these workshops in the east bay. Good luck! Lynne

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caveat: I am an attorney with extensive experience in estate planning

I will start by asking a question: do you seek expert advice where you lack insight or knowledge? Hiring an attorney for this work is the same decision. Can you do it yourself - yes. Will the software out there be adequate to satisfy what you need - maybe; that depends on the complexity of your situation, not just financial, but personal and only a human begging, asking questions, can assess that situation.

There are MANY attorneys who do little more than the software - there are some who provide true legal counseling - if all you are doing is setting up a basic guardianship for minor children, use the software and cross your fingers. If you want to really find a good attorney who will work with you to understand your options and your choices they are out there...

One note: if you have total assets under $3 million you DO NOT need a trust - any attorney who tells you that you must have a trust is not doing their job! hire an expert

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I feel you - we put it off for a couple of years too. Finally I borrowed the Nolo book with software from the library, installed the software on our computer, made the will, printed it out, got a couple of friends to witness it, and that was it. It was incredibly easy. The software is still on our computer in case we need to update the will. I don't see any reason to think there's a problem with legal technicalities, since the software is designed to do just what you're looking for. Love my public library

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I'm an estate planning attorney, so keep that in mind. Easily 1/3 of my clients tell me they bought some software or a book and couldn't do it. Even the Nolo books tell you to consult an attorney if you have anything out of the very ordinary going on.

There are so many pitfalls for the uninformed. It's not fair that you should have to pay a lawyer like me (and I charge a good amount for a trust, etc.), but the risks of doing it wrong are very high.

If your husband won't go, do it without him. In fact, in California, each spouse is entitled to their own estate planning attorney.

Hope that helps a little bit. Peter

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Estate planning with non-citizen spouse

Aug 2009

In a post, I thought I saw something that mentioned something about ''the state'' taking possession of your house if you die and your surviving spouse is not a citizen. I had never heard that before and am now worried because my husband has a green card and does not plan on becoming a citizen. Now that we have a child this is even more important. If you know about this and can educate me or know an inexpensive estate planner/someone who can help write up a will who is knowledgable about this type of situation, I would appreciate the advice. Thank you. anon

Moderator reminder: we can't accept legal advice - just your own experience. Thanks!

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The state wouldn't take the house. BUT, if you die (the citizen) pass away, your spouse will have to pay much more tax he would than if he were a citizen. This happened to friends of ours and it was awful. i can't remember the exact amounts but his wife (non citizen) had to give up 50% of everything that was his. so she lost 50% of the life insurance, 50% of the value of his share of the house ect. For that reason (in part), me, as well as several of our multi- cultural couple friends who were eligible became citizens that year.

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Since your spouse is not a citizen, it is extra-important to ensure that your estate planning is done properly. Your post stated that you have a house and a child; thus, you would benefit from setting up a revocable living trust in addition to a will. I've worked with quite a few families in your situation, so I know how crucial it is to draft documents carefully with a non-citizen spouse.

You can find lots of attorney referrals on the BPN archives. The Nolo Lawyer Directory (www.nolo.com) is also a good resource. Put together a short list of possibilities, and then start calling around. Personally, I think the most important thing about choosing an estate planning attorney is to find someone that's a good fit for you, someone that you feel comfortable talking to. Many of us offer free consultations, so don't be afraid to call several people until you find the right one. Kathleen

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Creating a Trust or Living Trust

Feb 2008

Our financial advisor tells us that in creating a trust/will we should go with a very reputable (aka expensive) law firm. His reasoning is that even if the lawyer that did the paperwork leaves, the firm is always there to back up the work.

We're not sure this is the way to go. How important is it to go with a firm versus a lesser expensive option? We don't mind spending the money if we get a good value for it (peace of mind that our family is taken care of), but don't want to get ripped off either. How have you set up a trust? Around how much is reasonable to be charged for this service? Also, any information on living trusts is appreciated. please help with trust

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You should check out nolo.com, specifically WillMaker Plus. You can create your trust with that software and at the very least, you can use it to research everything about trusts so your more knowledgeable if you do have a lawyer set it up for you. There's a lot of good info on their site too. Cris

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It's really not necessary to use a large firm for your estate planning work. If you're concerned that your attorney won't do a good job, you probably want to keep looking until you find someone that helps you to feel more comfortable and confident anyway. Nolo Press (www.nolo.com) has some good articles on how to find the right lawyer for you, as well as a lawyer directory that lists a wide range of attorneys - large firms, solo practitioners, and everyone in between. If it helps, I can tell you that there has been NO correlation found between the quality of the attorney and the size of the firm, despite lots of effort expended by big firms to promote that idea.

As for cost, there seems to be a pretty wide range of prices charged for trusts and other estate planning packages these days. Again, you can compare the fees posted on the Nolo.com directory, or you can simply call around.

Finally, please be aware that a lot of attorneys offer free consultations. For instance, I offer a one-hour free consultation, which can be in my office or at your home, whichever works best for you. That way, you can get all your questions answered without feeling any pressure to sign on the dotted line. Bottom line? Interview several people until you find someone that's right for you. Kathleen

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Reputable attorneys charges vary wildly for trusts. A well known attorney in my area quoted me $4000, plus overhead charges (xeroxing, Fed X) for our straightforward family living trust. I researched further and a friend with a large and complicated estate recommended an attorney in San Ramon. He charged around $1900, all costs included. For that price, we received the trust, 2 wills, durable health and durable power of attorney docs since all these documents are really tied together. He has done over 300 trusts and I felt totally comfortable with his level of experience and professionalism. We never had to go to his office, he came to our home twice, which was great, no need to hire babysitters (as both of you have to be present).

Your financial advisor is correct, a small omission (e.g. neglecting to ask if you have a disabled child who is receiving state services) can create a huge amount of headaches and problems for your executor so you need someone with plenty of experience. But to answer your question, you can get a good living trust done for $1900. The attorney is Rick Collari, he is in San Ramon but I think he might make housecalls to the Berkeley area as well. Sharon

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My husband and I just spent $2165 on a complete estate plan - a living trust, wills, powers of attorney for asset management and for health care decisions, with the attorney handling all of the transfers of assets to the trust (some will give you the option of doing that last part yourself, and therefore charge you a bit less). I had thought (hoped) it would cost less, partly because of somewhat outdated info in these archives, but I contacted four other attorneys whose names I had gotten on the archives or through other recommendations. One is not accepting new clients, one had a 3 month wait to get an appointment, and the other two both charged more than the price I just mentioned (and they were each small firm or solo practitioner). I don't know what less expensive option you have in mind. I had purchased the Nolo Press book thinking I should be able to do this myself (I went to law school) but it seemed more complicated than I had thought, and I didn't want to screw it up (esp since I would have no way of knowing if I had, and then my heirs would be the ones to have to deal with it). I think you should listen to your financial adviser. That's what you're paying him or her for. Glad to have the peace of mind

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I just did a trust with Sara Diamond of Berkeley. I work at UCB so I did it through my legal insurance. She was wonderful and I highly recommend her. She made the process as easy as possible and I could communicate through email which was easier than having to call about each question I had. judy

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Nolo Press publishes a number of very helpful books on Wills and Trusts and Estate Planning. They walk through the details and point out when someone can do it themselves vs. when one really needs to get a lawyer involved. Here is a link to their Wills and Estate Planning page: http://www.nolo.com/resource.cfm/catID/FD1795A9-8049-422C-9087838F86A2BC2B/309/ A Reader

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I have done a lot of research on this topic over the years. It is important to go with a reputable lawyer who specializes in trusts, but an expensive law firm is not necessary. Do make sure the lawyer knows trusts -- that is most important -- to do it right the first time. And any lawyer (individual or firm) will do amendments for free for the first year -- after that you have to pay to amend and an expensive firm will continue to charge high fees to do any work. You can pay anywhere from $200 to $500 an hour for this service. We got a fabulous lawyer from the Nolo Press website: Sara Diamond: www.saradiamondattorney.com/ -- (510) 548-4844. She specializes in trusts and really knows what she is doing. Look on Nolo's website and see the different attorneys and what they charge -- it is a real education. Note that some do trusts as a part of their practice and some specialize. Interview some... it's free and note that they all seem to charge different fees. They should tell you what they would charge to set up a trust to begin with and how they would charge for future work. Sara reviewed and amended our trust that was created by one lawyer many years ago and was further amended by yet another lawyer. Her charges were very reasonable and she found the trust to be in good order, only recommending some updates since laws have changed over the years and made the amendments that we needed. Some attorneys who I interviewed wanted to redo our trust at great expense -- sight unseen -- just because they did not create it. Totally unnecessary!! All of this to say, you do not have to pay huge fees every time you need something. Call Sara. Anon

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Going with a big firm isn't necessaily better; sometimes if you are a small fry they are less likely to put time and energy into your little trust. On the other hand, you DO want to go with someone with considerable experience in drafting trusts.The state bar has an estates and trusts specialization/certification; I think you can find the attorneys who have the certification as a specialist on the state bar website: calbar.org (the site can at least tell you how to find them, if they are not listed there). Re: costs, one rule of thumb is to expect to pay what you would pay for a typical, nice family vacation: the complexity of one's estate roughly tracks the amount one can spend on leisure! You planner has a good point about being with a firm that can supply follow through over time: good estate and trust attorneys will notify clients when there is a change in the law that may effect a trust that was previously written. But that doesn't necessarily mean going with the biggest or ''best.'' Also, it is important to have a good rapport with your attorney: Interview a few firms before you decide! Good luck!

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Writing a will; don't want my family making claims

March 2006

My husband and I are trying to write a will- but this is quite new to us. I want to be as precise in the will as possible, as to prevent my family from making claims to our estate or to our child. I would like to leave my brother some money, but only for his retirement. He is notoriously bad with money and I don't want him to spend it before then. Is there any way to do that? Also any advice about keeping my family out of it? any advice would be greatly appreciated. anon

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You should consult an estate planning attorney. It is worth the money and hopefully will prevent/lessen painful moments for your children regardless of when you die. Most estate planning attorneys will give you a 2-hour free consultation which they use to suggest which documents you need to have drawn. Martha

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You should contact an attorney to discuss the possibility of a trust. You could provide for your brother's retirement to be administered through the trust, name your alternate trustees and guardians for your child, and designate how the trust is to be passed to your child. anon

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There are several ways to ensure that your brother will be provided for, without necessarily leaving money to him directly. For instance, a trust can be easily established during your lifetime which will operate to protect him. You would want to set it up carefully - probably with the aid of an attorney - so that he would have access to some funds in case of major emergency (at someone else's discretion!) but so that he didn't fritter it away.

As far as keeping your family out of it, I'm not entirely sure what your goal is. Do you simply want to ensure that none of your relatives have access to the money, or are you trying to make sure that none of your relatives inherit? Either way, an attorney could help you here as well.

Please feel free to contact me if you have more specific questions, or if I can be of any further assistance. Kathleen

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Contesting my father's trust

Feb 2006

My siblings received my father's estate (50% each) and to make a long story short they decided between the two of them that it wasn't fair and that I should receive 1/3rd of it. Can that be done and how? I'm not even sure of what questions I should be asking! Given that we all want to minimize, if not simply avoid any tax consequences, what do we do? Does the primary trustee of the trust have to contest the trust to include my name on it? Or, if that causes it to go to probate and incur fees, can they simply set up educational trusts or 529s for my children with my 3rd? This is such a stressful, delicate road to navigate. We've been researching on the Internet and know that we have to find an experienced attorney, but how does one even do that? What questions should we be asking the attorney and should that attorney be located in the county where the trust was created? Any advice would be most appreciated. Thank you so much. anon

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Good Luck, and bring the big bucks. The hardest thing is to overturn an agreement or a Trust. Get yourself the best lawyer and a realistic opinion. Unless the trust has been done under duress, or the circumstances of the beneficiaries have drastically changed that a real cause can be set forth, you may have a case. Getting advice in the parent line is not a really good place to start, because what you need is ''money'' to fight the lawyers representing the trust. But if the fight ( that you may loose) costs more than you want to get, is not worth it; but if the gain is substantial, go for it. Your advice

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When we encountered Trust issues we went with Eric Steinhaur Esq. in Berkeley. He comes with 33 + years of experience and is a Harvard Law School graduate. On top of that his rates are reasonable. Very reasonable. A trust can be a bit tricky, not to mention family issues, but I am sure that he can help you and your siblings navigate those waters. His number is 510-843-9944. He does not have email (old school but very good). I would ask him all of the questions that you pose in your email. Eric also works with Zachary Epstein Esq. who is a tax attorney and CPA. You pretty much get your bases covered.(Zachary Epstein also did our family trust and our taxes). They are both very very good. We also went to Nolo Press in Berkeley (they have a web site) for some books for basic trust information. Good Luck

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You need a good lawyer. Michael Doran helped me with my trust. I''m sure he's in the book. Good luck

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I know how you feel. When my aunt passed away a couple of years ago, per her instructions, her trust was divided between her 12 nieces and nephews. My three siblings received 15% each and I received 5%. The four of us all grew up locally with my aunt and shared the same experiences with her. To this day, I can not figure out why she did what she did. Two of my siblings agreed what my aunt did to me was unfair and divisive. After they received their portion of the estate, they each wrote a check to both my husband and myself for $11,000 each (the maximum that you can receive as a gift from one person per year) -- do your own research on this to confirm. The $11,000 gift is untaxable. Talk to your tax person to discuss the possibility of your siblings gifting you the money over several years if it is a large amount. Good luck -- and I'm sorry. I know it hurts. Kathleen

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Estate planning for unmarried couple

March 2006

I am trying to organize wills and retirement for myself and my partner and have some complicated questions. Do we need a financial advisor or lawyer to answer these? We are an unmarried hetero couple with a 20 year age difference and a young child. Should we marry? I am slightly opposed to the institution. If we leave our assets to eachother in a will, will the state override this (since we are unmarried) and grant them to our child? If not, will there be inheritance taxes or probate that would not happen if we were married? If we marry and my partner needs expensive medical care at the end of his life (a very likely possibility today), will we be required to spend all of our joint retirement assets before we will get assistance from the state? If so, given our age difference, I will enter retirement destitute (or never retire). We save 15% of our income for retirement, but have very modest incomes and know nothing about investment, so this doesn't add up to much. Is there any way that I can leave my full assets to my partner if die, but also hold on to my retirement savings until I actually retire? Could trusts help? should we marry? Who can answer these questions????? confused

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A former colleague of mine and her then boyfriend (now husband) were in the midst of setting up a slew of provisions,etc. with their attorney regarding her son (from a previous marriage) and her daugher (with the boyfriend). The attorney finally told them it would be easier if they just got married which they did (and still are married). However, if getting married is not an option for you, you definitely need to consult an estate planning attorney for all of the reasons you have mentioned. From personal experience in dealing with my mother's estate planning (she is alive but now suffering from dementia) and setting up a trust with my husband, it is imperative that people do estate planning when young children are involved to say nothing of getting it on paper what your end-of-life wishes are healthwise. Martha

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You need to consult an attorney who can answer your questions. The short answer to your question, however, is no, you do not need to marry to achieve your objectives. Either a will or trust document, properly prepared, will override the default distributions that occur when someone dies intestate. anon

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It sounds like you have some issues that require professional advice. I recommend going to see Jarrett Topel who is a financial planner in Oakland. He prepared a financial plan for us and also referred us to an estate planning attorney who set up a living trust for us which sounds like what you will need. Jarrett's first appointment is free, so you could probably get some good information without having to pay an arm and a leg just to sit down and get some advice. His number is 510-655- 4400. E-mail: jarrett.b.topel [at] ampf.com Good luck. Tracy

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Well, I confess that I don't much advocate marriage if both people aren't keen on the idea. So - how to accomplish your goals without marriage? Actually, it's not all that difficult. You will need to draft your estate plan carefully, though, if you want to leave everything to each other, rather than to your child. Revocable living trusts are probably a good idea if you want to avoid probate. If you don't get married, of course, your retirement assets won't be at risk for his medical care. As far as inheritance taxes are concerned, that will depend upon the size of your estate. There is no California estate tax; the federal estate tax currently affects only estates that exceed $2 million. If this is you, there are certainly things you can do in your estate planning that will reduce (or in some cases eliminate) your tax exposure.

Although some of this work could be done on your own, I strongly recommend that you see an estate planning attorney in order to create the best plan for your particular circumstances. As an estate planning lawyer myself, I do sometimes refer people to a financial advisor who can help them make the most of the assets they have, as well as helping to build a tax shelter if appropriate. However, it's the design of the plan itself that will be the most useful to you in accomplishing the specific goals you mentioned in your post.

Please feel free to email me directly if I can be of any further assistance to you. Kathleen

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Living Trust or Will?

Feb 2005

I am finally getting around to drafting my estate documents - will or living trust, durable power of attorney, guardianship documents. The attorney I consulted said I should decide between a will and a living trust. As to how to decide, he said that the benefit of a living trust over a will is overstated, the avoidance of probate through a living trust does not necessarily outweigh the cost, and probate is not the Dickensian horror everyone thinks it is.

I did some web research, including the BPN website, on whether to go with the will or the living trust and I haven't found much to help me decide. So I'm turning to the BPN community for its experience and wisdom.

I am a single parent of a single child, I own a house and I have a small amount of retirement funds. Since no one in my family would contest that my whole estate should go to my son, I'm wondering why I should go with the living will. Does anyone here have any advice or experience? Thank you! Confused

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Hi. You need a will regardless. A living trust just lets the person executing your will avoid probate. This speeds things up. As a single parent, your will is very important because you need to name the person who will take care of your child (and a backup or two). Also, you can name a separate person to handle the finances of the estate. For example, Uncle Bill would be great to raise your child but can't handle money. Aunt Mary works 60 hours a week and couldn't handle a kid but could easily administer the estate until the child is an adult. (Yes, the estate can keep going that long, or longer: The choice is up to you.) Anon

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As I understand it, a living trust is the better solution if you have assets in a different state, such as real estate. Otherwise, if your situation is not complicated, I think a straight will is the way to go. Leslie

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You'll want to read or skim the Living Trust book published by Nolo. (It's probably at your local library.) Among other things, it will tell you that even if you have a living trust, you'll still need a will to cover items that aren't transfered to your living trust. And you'll need either a living trust or some other legal advance directives to have some make medical decisions for you should, God forbid, something happen. Also, the relevant Nolo books/software will help you create your own living trust and/or will if your situation is not too complex and you're not extremely wealthy. David

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I just went through the same decision process. We ended up not setting up a living trust and going with just a will. I agree that it's not always necessary, but you really have to look at your own situation and decide if the benefits would be in your best interest . I found the Nolo books on the subject very helpful. They listed clearly all the advantages and misconceptions. I found recent copies at my library, so it needn't cost anything. Good luck Ruth

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In general, I recommend that individuals with property and/or children have a living trust, as well as a pour-over will. As a single parent of a single child myself, one major reason to use a trust was t! he desire to keep any assets in trust for my son until he's old enough to take care of everything himself. I also prefer the privacy that a trust offers: a will is a public document, part of public record the moment it is submitted for probate.

While it is true that probate is not a ''Dickensian horror,'' it does involve both time and money that need not be spent. I don't understand your statement that ''the avoidance of probate through a living trust does not necessarily outweigh the cost.'' A living trust doesn't necessarily cost more than a will. In my practice, for instance, I offer a basic estate-planning package that includes a living trust if applicable, a will, and an Advance Health Care Directive. Thus, there's no cost difference among the various options. I'd be happy to discuss your options with you further. There is no cost for an initial consultation, if that is a concern. Kathleen

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Dear Confused: Your situation has complexity that I am not sure the attorney you consulted addressed. Since you have a son, are single and own real estate I, as an estate planning attorney, would recommend a financial analysis of the gross value of your estate minus the mandatory costs of probate-to the attorney as well as the executor--as opposed to that of reasonable compensation to a successor trustee and consultations with an attorney. In addition, the streamlined nature of trust administration--which would include some consultation with an attorney but seems much more expedient--must be considered if you were to pass and leave your child in the care of the guardian. Any attorney with whom you consult should consider not only the living trust option but the guardianship issue which is to be addressed in a pour over will should you choose this option over a basic will and allowing your estate to pro! gress through probate. If you wish to discuss this further feel free to contact me. I am a member of BPN, a mom and an attorney with my home based practiced dedicated to estate planning. Deborah

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This is not a simple topic. I recommend you go to the library and read one of the Nolo Press books on wills and trusts. Then go back to your lawyer with more questions. You can have both a will and a living trust, or just one or the other. There can be significant advantages to either a living trust or a will by itself, depending on what you need. One big advantage of having a will -- which goes to probate on your death-- is that you can put a ''testamentary'' trust in the will to get court supervision of a guardian and a trustee for your child, should you die young. The extra protection a will gives you here, which a trust usually won't, is that the trustee and the guardian have the extra hassle and expense of getting court approval of their appointment and their decisions. The will is public information, which some folks don't like. The executor of the will, and the lawyer probating the will, are entitled to fees that are a small percentage of your estate, which in your case could easily amount to thousands. But if you don't want them to have to sell your house to pay the fees a! nd other expenses of probate, get extra life insurance.

On the other hand, a living trust (which, like a will, you can revoke or amend any time before you die) is private. It requires a little more paperwork to set up because you have to transfer title to some property (like your house), so that the trust officially holds it. A trust generally doesn't require court supervision for the trustee to spend money or sell property. A trust's major benefit is convenience. You can set it up so that if you go senile or have brain injuries or something, your trustee can step in to manage your affairs without requiring an expensive ''conservator's hearing'' in court. (This REALLY helped with my parents.) Ask your lawyer about tax complications of naming the trust as the beneficiary of your IRA or other retirement accounts. A lawyer who prepares a living trust for you will also prepare a ''pour over'' will that ''pours'' any other property you own at the date of your death into ! the trust for convenient administration. good luck

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Why not do the ''living trust'' and a will? That's what we have. That way if something were to happen, no probate court (while probably not Dickensian, it still takes time, and wouldn't you just want everything to go right to your kid w/o a hassle?). Then the will rounded it out with some specific instructions about other things. Hilary

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I'm an estate planning attorney (and mom of 2) and saw your post about wills vs. trust. I have a couple of thoughts for you to consider. First, this is a decision that you should be making with the guidance of your attorney, based on your specific situation. I'm concerned that he's leaving the decision of will vs. trust up to you. Typically, the decision is a relatively simple one once we discuss a client's priorities in life, a! ssets, and pros and cons of a will vs. a trust.

That said, second, while probate can be a useful tool in some situations, there are a number of reasons why avoiding it should be considered. Primarily, it's a very long process, often more than a year, is very public, and it can be very expensive. Probate fees are set by statute, and attorneys get paid based on the value of the probate estate. You say your assets are modest, but you might be surprised to learn that that value of your home for probate fee purposes is its fair market value, and is NOT reduced by the amount of your mortgage. Therefore, your child would end up paying probate fees that could be avoided with a living trust, in addition to being overwhelmed with the court process (not to mention the loss of the parent!). Your child's access to the funds would also be limited during the probate process. And if you feel no one would contest your estate plan, all the more reaso! n to keep the court out of it. In comparison, trusts are private, allow access to the funds immediately, and avoid those ridiculously high probate fees (and keep in mind that I'm an attorney who typically makes more money probating an estate than drafting or adminstering a trust). But most importantly, as a mother, one of my primary concerns when planning estates with my clients is protecting the children in the best way possible. A trust, whether a living trust or one created on death with a will, can help ensure that your children do not get their inheritance too young, but are able to access the funds for their education and needs. Estate plans are very individual - and should be drafted with your particular situation in mind, with the guidance and caring of a good attorney. I'd be happy to discuss this further with you if you'd like. Gigi

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In general, benefits of a will over a trust: Writing up a will is cheaper than a living trust. Sometimes having a living trust is an inconvenience because you assests need to be held by the trust and sometimes people need to see the trust document and require extra paperwork. In General, benefits of a trust over a will: After your death, going through probate takes time and money. I think the bigger your estate, the more money it costs. With a trust, everything can be distributed immediately. My understanding is that if your estate is large enough, a trust makes sense. If your estate is not large enough, a will makes sense. Also, with a will, since your estate could be tied up for a year or so, will the funds come from to care your your child (which I think life insurance can take care of). I would expect an attorney experienced in writing these documents would be able to help you make the right decision for your situation.

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Choosing Executor/Trustee for Wills

March 2004

*sigh* I probably know the answer to this, but wanted to hear some advice first:

My husband and I are going through the process of writing wills and would like to ask my cousin to be the executor of the wills and the trustee of the money for our children in the event that we both die. My sister would be the children's guardian - the idea being that the trustee and the guardian would work together to use the money wisely to supplement the guardian's income to raise our children until they are through college. (We hope to plan for enough assets to provide an appropriate annual amount for their care, including vacations, etc. + some reasonable college tuition, but don't expect anything to be left over when they are done with school). I trust my sister and her husband, I just feel that it would be better to split the responsibilities of child-rearing and money so that, if there were unforeseen circumstances that made it difficult for them to decide objectively between using the money for our children vs. for their children (which might be the right thing to do, depending on the situation), there is a third party who is thinking exclusively of our children's interests, in light of all facts and circumstances.

My husband's dad is out of the question for the role of executor/trustee for many reasons, and I did not want to name my own dad, as he is not a detail person AND I can see the situation being rather volatile, given that my sister already thinks that my parents butt in too much, are critical of their financial choices, etc. My cousin is very reliable, we are close, he has integrity and I think he could handle the situation diplomatically. I suppose there is always the potential to cause a big family blow-out, but I think it would work out okay. After all, what I intend to communicate is that I want my cousin to be respectful of my sister's choices, just watching out for our children's interests.

Last week, I was telling my mom that we were finally getting down to writing wills, etc. and she started asking questions, and I eventually told her what we were thinking re: the above. Well, she got all huffy and thought it would hurt my dad's feelings not to be named executor/trustee, that it would look bad to the rest of the family, blah, blah, blah. I am so irritated about the whole thing, and wish I'd kept my mouth shut, except that it is really better that all this happen now, when we're alive, than later (in the very unlikely event that we both die...) when all they are left to do is challenge stuff in court or carry hurt feelings to the grave.

It's not like being an executor is a coveted task, and frankly, I think my mom is putting all her insecurities about her family on me. After all, if the rest of the family is shocked and dismayed, why doesn't she just tell them to mind their own business? I don't even know that my dad would have hurt feelings, and I doubt he would tell me honestly if he did. The way I figure it, if my husband and I are both dead, it was a tramatic event, and my dad will be grieving our deaths - why should he have to keep coming up here to settle our affairs. *sigh* So what do you think? Am I really slighting my father by not choosing him? Is there a delicate way to handle the situation, or do I just need to say, ''this is what we want, deal with it.'' Is there a middle road? Am I trying to control things after death that I simply can't control? In need of a backbone

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If your sister is willing to raise your children as her own, she is the person with whom you would discuss whether a trustee is necessary, and who she would be comfortable to have in the position.

Frankly, you've described your funds as supplementary to her expenses to raise your kids -- in her position I'd be hesitant to accept a third party ombudsperson, and would expect you to trust me -- or to ask someone else to be guardian.

As far as naming an executor... its your choice to make, and were such a person to be necessary you're right that other issues would be more pressing than whose feelings got hurt. In the future I'd avoid discussing it with your mom. Good luck, Heather

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It is so important that parents plan for the unlikely event of an orphaned child, and I commend you for it. Having said that, it seems appointing guardians/executors can really rile up a family. Someone is going to be upset and feel left out. I had a similar situation when I chose a cousin, instead of either grandmother as a guardian. The way I smoothed ruffled feathers was to explain my positive rationale behind picking my cousin. Also, I did not giving any negative reasons as to why I did not pick either grandmother. Objectively, I felt a guardian/executor should be from the my same age group, and not from an older generation as the reality is the guardian/executor has to live as long as the child. In other words, I didn't make it personal, just explained my criteria in picking a guardian. You didn't say if you had mentioned to your family why you didn't pick your father as executor. If you haven't yet, I would not and just keep it general. However, you are the parent, and what you say goes as to who is the guardian/executor. Your parents got to pick their guardians, and so do you. My guess is that your family, other than your parents, will be less shocked by your decision than you might think. Good luck!

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I think you have a really easy way to explain your choice of your cousin over your dad. I assume your cousin is much younger than your dad and thus much more likely to be alive and able to look out for your kids' interests up till they turn 18. So just say you wanted a younger person, or someone of your own generation or some other tactful explanation. deborah

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This is so important and it is your decision. Go with your gut. In my opinion your reasoning sounds very sound. margo

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It's really irrelevant whether your father (or anyone else in both families) would be hurt. Your job is to figure out what would be the best situation for your children. It sounds like you and your husband have put a lot of thought into this, and your family should respect the decisions that you have made. Honestly, all this drama will probably be moot anyway, because it's unlikely that the situation would even arise (knock on wood). Good luck! Tonya

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As my spouse and I have put thoughts towards this planning, we're not looking to our parents generation for involvement. What if your executor is, by the time! s/he is needed, too old to do the task? I chose someone from my generation with the thought that s/he is more inline with my wishes, my generation, and will more likely be alive and able to devote energy to the responsibility until my children reach majority age. It's less likely the grandparents will see the grandchildren to adulthood. willful

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One: I think your mom's got a lot of nerve. Two: You could try telling her that you wanted to select as executor someone of your own generation, so that you needn't change your wills in the likely event that your father passes away before you or your cousin does. Three: Just to make things more difficult for you, I'll pass along the advice that our estate attorney gave us: Naming different executors and guardians can lead to a great deal of difficulty for those people unless they are extremely close, both geographically and emotionally. Im! agine if your sister has to ask permission of your cousin every time she wants to purchase something for your children, or if there's an emergency situation where she needs access to finances on your childrens' behalf and your cousin is unavailable. darcy

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Of course you are not slighting your father. As you said, he would already be grieving your unfortunate death, why burden him with ongoing administrative affairs. Let him relax in his golden years. My father was the executor of his mother's estate, which was not that big, and it took years before everything was settled. It was a real drain. My husband and I also just wrote our wills. We chose our sisters as executors mainly because they are our age--i.e., barring unforseen events, the chances of them being alive at the time we die are greater than the chances of our parents being alive, and! why set up your will with such a liklihood that you will have to change it. So let your mother know it is not ''expected'' that one would choose a parent as executor--we hardly even considered it, and we are both very close with our parents. Tracy

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My husband and I recently went through this with the living wills, trusts, etc. We decided to put my best friend as guardian of our young daughter rather than choose any of our siblings because of a number of reasons but mostly because we wanted our child (should anything happen to both us, God forbid) in the family situation of our choosing, not just because they are ''family'' and it was expected.

The lawyers recommended separating the financial responsibilities from the guardianship responsibilites, as yours have as well. So we have given the responsibility of how the money is used for the benefit of the child to one of my husbands sisters, with a financial consultant actually controlling the money. As to your family's feelings,,,, you have to consider, and it appears you have, what is going to be the absolute best situation for your children if you cannot be there to protect and guide them. That is the bottom line and NO ONE else's feelings should have a bearing. They should support and respect that you doing the best for your children by planning for a situation that hopefully will never happen. And should it, they should just be there as the family to give support and guidance to your children. Without the whole ego thing of why didn't they pick me? Give me a break. Just MY two cents....

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I realize it's only sidestepping the issue - but I avoided the question of choosing someone of my parents' generation by simply pointing out that she was statistically more likely to predecease me, and I'd rather do all my planning once instead of twice. This is a sticky thing, though - good luck!

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I ran into this issue as well. My Parents and My husbands parents as well as a few close friends simply assumed that they would be made guardian, trustee or executor for my children. My general response is ''This is my decision get over it'' but I realize that that is not resonable or diplomatic and it's my children that will have to deal with the reactions to this as I will be gone so I put on my nice sweet Mom face and calmly explained some of the positve aspects of our choices. I did not go into why I felt anyone was unqualified just stuck to the positive, kept repeating the choices we made and stopped there. It was difficult for me and unpleasant but I feel in the long run it was the right choice. Amy

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I would tell your mother & father and anyone who feels they need to know the details of your will that typically, someone older than you is not chosen as executor or guardian or trustee simply because their life expectancy is shorter than yours and you want your will to be a long-standing document. Generally, it's better not to tell anyone anything about your will, other than where to find it if you die. I guess you know that already, in hindsight. Best of luck. anon

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It is best that your executor be someone who can run a business. They are, in the event of a catastrophic emergency, going to be running YOUR FINANCIAL business. In regard to family, I made a similar mistake and spilled some unpopular beans in regard to guardianship. I think it is best handled to say that you are sorry you said anything to begin with and explain that these are very difficult and personal decisions. And then refuse to talk about it anymore. Leslie

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I just went through the very same situation with my mother. Last summer I mentioned that we were working on our estate planning. Big mistake--she emotionally stated that she should be the guardian and implied that my stepfather should be the trustee because he's a retired lawyer. She's 60 and he's 75 and our daughter is 20 months. I just ignored the comments and wished I hadn't said anything, but figured it would come back around. In December, after the trust and guardianship paperwork was already finished, our daughter's selected guardian had a stroke (at age 42) and we were very concerned about our dear friend. My mother used the situation again to express her opinion that we had made a mistake in our choices. It was a very difficult situation, made worse by the fact that she seemed more concerned about how she felt slighted than whether our very close friend was recovering. Again, I ignored the comments and figured it was her own insecurity. I tell this story to let you know this is not an uncommon situation, is usually emotional, and I think you are making the best decision for your children.

It has nothing to do with slighting someone. It's important that the guardian and executor/trustee be people (or a person) that you feel comfortable with and it's not your parents' place to second guess that. The whole point is that making these decisions now is the only way you can control what happens in the unfortunate situation of your death, and you shouldn't leave it to a judge or someone who you think couldn't handle it for whatever reason, whether it's age, grief, etc. It's your decision, not your parents'. It's too bad that you brought it up to your mom, but you probably didn't anticipate the reaction, as I didn't. My husband has told me that I need to get a backbone with my mom and I sort of dread talking to her now for fear she'll bring it up again.

One thought on it looking bad to the rest of your family: no one with any sense of appropriate behavior would ask you or your parents who you selected as trustee or guardian, and if they did, the response ought to be ''none of your business.'' (I wish I had said all this to my mom at the time she gave her opinion, and I will if she uses that reason on me in a future discussion.) Does your mom tell her family everything? If so, that's her problem and not yours, and I can't imagine anyone will care. Are you concerned that your cousin and/or sister would bring it up? They should be the only people you need to consult and they really ought to keep it to themselves if that's your wish.

So, is there a delicate way to handle the situation? While, I've just decided to avoid the discussion, and maybe you can do that too. I don't know your mom's level of persistence. I know my mom will bring it up eventually and I hope that I'll have the courage to say (calmly) that our decision is made and I'm sorry she's not happy with it, but it's not up for discussion. For you, I'd probably add that it's no one's business and that she ought to have the same response to anyone who asks her. It's sort of middle of the road--not giving in to her request, not engaging her in a decision that's not her business, but also not bluntly saying ''just deal with it,'' which could be hurtful, depending on the tone.

Good luck and I hope that you're able to get through the situation smoothly. The frustrating thing for me was that this is planning for something that hopefully will never happen and it was perceived as cutting my parents out of our daughter's and our lives here and now. I hope that's not what's happening for you and encourage you to stick to your decision. In similar shoes

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A friend of mine recently completed her will, naming me the guardian or her children, as well as making me the inheriter of her assets. She stated that her lawyer recommended willing the money to me, my family and her children, relying on me to make the best decisions I can. Otherwise apparently a lot of resentment can surface as one set of children may have more options than the other set. anon

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Go with the very sanest person you know--more often than not, such a person is not a family member. Most litigation around wills arises around family member executors/trustees, not around objective, disinterested 3rd parties such as a bank or lawyer. We have a fairly large estate and do not want our children going to looney family on either side--ergo, we sleep nights knowing that we are so fortunate to have a god-parent who is intact emotionally and fiscally saavy. I want to emphasize that she does not share DNA with either my husband or me. One of the best trust and estate attorneys I know, by the way, told us that to name a particular sibling (offspring) executor/trustee of a parent's estate is almost a guarantee of enmity and litigation.

The goal is to minimize heartache and conflict around the execution of the will not to stroke the egos of needy family members. Sleeping At Night

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Cost of a lawyer for estate planning

Jan 2003

I got a recommendation for a lawyer specializing in wills, trusts, guardianship, and so forth, whose very thorough and informative packet of info included a generic estimate of a fee of more than $2000 for complete estate planning for two people. We have a baby, a house, life insurance, some small-potatoes investments, and some pension fund, but am I wrong to think that this is an exorbitant fee, or at least that our own arrangements will not require this much chargeable time on her part? What have other people paid lawyers for these services? The website had almost no mention of customary attorney fees. Karen

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Did you ask your lawyer what his or her hourly fee is? It's not unreasonable for a lawyer in the Bay Area to charge plus/minus $200 per hour. At that rate, your $2000 fee is based on ten hours of work. Since everything in your trusts and wills must be legally perfect, I don't think that's an unreasonable fee. In fact, it's about what we paid for ours. After shopping around, it seemed about mid-range for this kind of work. If it helps, consider it another investment--this time for your child. In the long run a well-drafted will and trust will save lots in taxes and legal fees down the line. Carolyn

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We did estate planning during 2002, which for us involved a living trust, wills, and health care powers of attorney. We met with the attorney twice- first to discuss a plan and the second time primarily to sign documents. We went back and forth with the attorney's office several times reviewing the documents. The attorney finalized the documents and filed the appropriate paperwork to put our house and other assets into the trust. She charged a flat rate of $1,500. Resting easier now that my son is provided for

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In 1999 we paid a probate attorney $700 to set up an estate plan that included a will, a revocable family trust, and health care guidance (not the right term--this was a signed agreement about what you want done in the event your health fails and you cannot make decisions for yourself). I am sure the price has gone up in 4 years, but probably not to $2,000. You can email me at annwrixon [at] hotmail.com and I will send you the name of the attorney we used. Ann

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I think $2000.00 seems a little excessive. I guess it depends on how complicated your financial situation is,etc. My husband and I did a will about 4 years ago. It included a living will, gaurdianship, etc., and it ran us about $550.00. We did it with a lawyer in San Francisco that was recommended to us. He was very thorough and did it in a timely manner. We changed gaurdianship last year, and he did it by phone and then sent copies to be signed with a witness present. It saved us a trip into the city, and he only charged $150.00. His name is Brent Kato if you are interested. Tracy

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We paid $1300 for a lawyer to prepare our estate plan, which included wills, a trust, guardianships, and durable powers of attorney. We paid a little extra because of the complicating factor that we're not married. (We used Jane Penhaligan in Pleasant Hill and were very happy with her.) Linda

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I recently had a estate planning for me alone and it cost $1500 which I thought was high, especially since it only took a one hour visit and was ready the next day. I certainly wished I had asked up front what it would cost. anonymous

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We used James Kaller, 415 362-9134. He is in SF, but his office is close to Montgomery BART, plus he was very flexible about scheduling meetings around our hectic lives (we have two young kids). He even came to our house for the initial consultation, which was free. He has a package that includes a family trust, wills, powers of attorney, and health care directives for about $1000. He is an affable, thorough person who answered questions we didn't know we had. Anon

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Dear Karen: My typical fee for estate planning for someone in your situation would be $1000 plus costs. Costs are things like County Recorder's fees and typically run from $10 to $50. I recommend that you make sure that the attorney is experienced You should ask what their primary area of practice is (it should be either tax, estate planning or probate) and how long they have been practicing (at least 5 years, preferably more). As a bonus, the state bar certifies specialist in estate planning, trust and probate. To be certified as a specialist, you need to have enough experience and have passed a test (most attorneys are not). I hope that I have been helpful. If you have any questions, you can call me at my office. No obligation. I practice in Lafayette, but will make house calls in Oakland or Berkeley. Best Regards, Stewart