One of the most challenging parts for people unfamiliar with the estate planning process is the specific vocabulary used to talk about each of the documents involved in an estate plan.

In this post, we'll cover some of the words associated with the creation of a Will to help you be more conversant with your estate planning lawyer.

1. "Testator" - This is the person who makes a Will. 
2. "Gift", "Bequest", or "Devise" - These words are used interchangeably, and they all refer to property that you would like to give away at the time of your death. Thus for example, you might tell your estate planning lawyer, "I would like to make a bequest of $1,000 to my niece, Sally, when I pass away."
3. "Codicil" - From time to time, you may need to revise or amend your Will without rewriting the Will entirely. You can do this by creating a codicil to your Will.
4. "Executor" - This is the person that you name in your Will to carry out the tasks of collecting your assets, paying off your debts, and distributing your property to your beneficiaries.

A Will is amendable and revocable up until the time of death. A "Will" also includes the original Will and all Codicils to it.

Every estate plan should have a Will as one of its components. Wills, however, can come in several varieties and have different requirements depending on which one you select.

Formal Witnessed Wills

A formal Will is usually produced on a word processor or other text editor. It has to be signed by you (the creator of the Will, also known as "Testator") and be witnessed by 2 witnesses. Best practice is to also include the date the Will was signed on the Will itself.

California Statutory Will

If you have a very simple situation, very little in the way of assets,  or an immediate need (e.g., before you travel) it may make sense for you to utilize the California Statutory Will.  This Will is essentially a form created with the Probate code of the State of California. (See California Probate Code Sections 6200-6243).

Holographic Will

A holographic Will is one that is completely hand-written by the Testator. It must be completely handwritten by the Testator but it does not require witnesses.  

Ancillary Provisions in the Will

The Will should also designate someone to act as your "Executor"--he or she will be the person in charge of making sure that your wishes are carried out. The Will is also where you may appoint a guardian for any minor children that you have.  Finally, you may have a "power of appointment" that another person granted you, which may require you to exercise that power in your Will by including a provision in it. 

Pour-Over Will

Wills that are created in conjunction with revocable living trusts are often referred to as "pour-over Wills". The reason is that the primary function of the Will is to "pour-over" the assets into the revocable living trust that you created after you die. In this context, the Will is essentially a back-up document in case you forgot to properly re-title certain assets in the name of your trust. As mentioned in prior posts, avoiding probate is a major goal for most clients, and in most counties, Los Angeles included, the probate process can often take over a year to complete.

So you've had an initial conversation with an estate planning lawyer and you've exchanged communications. The time has now arrived for you to have a more extended meeting to discuss the finer points of your estate plan. Don't worry! If you and your lawyer have done the necessary homework, this last step won't be difficult.

Presence of Family

For this extended meeting, it may be a good idea to bring along key family members who may be involved in your estate plan. For example, if you've named a family member to serve as your successor Trustee or your Executor. It is by no means necessary, and some people elect not to do that so that they can maintain privacy.

The only instance where you should bring a family member (if at all possible), is if you're married or in a registered domestic partnership. Your spouse and/or partner is more than likely going to be an integral part of your estate plan--indeed, you and your spouse/partner will likely have a joint living trust, so they would be a client too!

If your family comes along or if a family member introduced you to the estate planning lawyer, the lawyer will be diligent about making sure that you are not being coerced into making an estate plan that benefits the other family members. The estate planning lawyer will also check to make sure that you understand the nature of your requests and that you have the mental capacity to instruct the lawyer on creating an estate plan. The lawyer's ultimate obligation is to the client, which means that he or she will act in your best interest.

Details of the Discussion

At the meeting, the lawyer will try to get a sense for some or all of the following:

1. The nature of your relationship with the people you want to include in your estate plan.
2. What your particular needs or concerns are.
3. Any specific health care or medical needs you or a family member may have.
4. If you own a business, whether you've established a plan for succession or whether there's any "going concern" value (aka, is the business worth something if you aren't working in it?).
5. Whether you want to donate to charities.
6. How you want to structure gifts to beneficiaries who are minor or suffering from incapacity or other conditions, which makes an outright gift infeasible.

Remember that your estate planning lawyer is ultimately translating your wishes into legal format, so you should feel open and tell the lawyer what you are thinking. Keep in mind that an estate planning lawyer has likely worked with many clients who are facing similar decisions to you, and can often help you see the potential obstacles in how you want to structure your estate plan. In fact, this is one of the best values of having a live lawyer help. 

Even though you have an estate plan in place, you might still wonder what your family is going to have to do after you pass away. It's an important question and something that your family should be aware of since they (or someone else close to you) will most likely be the ones who will be carrying out the wishes that you've specified in your estate planning documents. The sequence of events that happen after you pass away turn primarily on the type of estate planning device that you've utilized.

Frozen In Time

As a general matter, your Will and/or Trust will be irrevocable (meaning that they cannot be altered) after you pass away. If you only have a Will and you have a large enough estate, your Will will need to be probated. Your Will will be probated in the county where you were living at the time of your death (usually). If you have real estate outside of California, then your Executor may need to initiate an ancillary probate in those other states.

Trusts

If you established a Revocable Living Trust as your primary estate planning device, then after your death, your Trustee will handle the administration of the trust without court supervision or probate. The courts are available to settle any issues that your trustee or your beneficiaries may have, but otherwise, there's no need for court supervision. If you were married or in a registered domestic partnership at the time of your death and your trust holds community property, usually only your half of the community property and separate property will be affected, and the provisions of your trust that affect your property will become irrevocable and unamendable. (Your spouse or registered domestic partner's half will still be totally within his or her control.)

Probate Anyway?

Even though one of the main goals of establishing a trust is to avoid probate, there might be a few situations where a probate proceeding may be initiated. There are additional expenses in beginning the probate process, but it could make sense in the following contexts:

1. The Executor might want to establish that your Will was valid.
2. It may be necessary to nominate the Guardian(s) that you've named in your Will to care for any minor children that you may have.
3. Probating your Will can shorten the creditor's claim period from 1 year to 4 months.

Although it is not always advisable to divulge the specific contents of your estate planning documents to your family members, it can be a good idea to loop them in to the process so that they know what to do if you suddenly passed away.