One of the major objectives of using a revocable living trust is to plan for incapacity. For that reason, revocable living trusts typically contain a provision that provides for a successor Trustee who is able to manage the assets of a trust for the benefit of the Trustor (the creator of the trust) while the Trustor is incapacitated.

The standard for when the successor Trustee will assume the role of Trustee usually depends on the medical determination of one or more physicians. Some trusts may also allow the successor Trustee to make this determination based on his or her personal judgments. As a practical matter, however, financial institutions that hold the trust assets may have a difficult time accepting an informal determination by a successor Trustee.

If relying on the certification of one or more physicians, it is important to ensure that an Advance Health Care Directive naming an agent is in place. A physician may decline to render an opinion regarding the current Trustee's capacity without a document allowing disclosure of sensitive medical information.

As our population's lifespan increases, the risk that a portion of it may be spent in an incapacitated state makes it even more important to ensure that proper measures are in place to plan for these situations.

Unlike other states in the US, the probate process in California (which is required if one dies with only a Will or without any estate planning documents at all), is (a) time consuming and (b) expensive. As a result most people in California should consider utilizing a revocable living trust as the primary estate planning vehicle as it minimizes the risk of encountering the probate process.

Probate proceedings in California require notices and hearings, which take time to complete. In addition, a number of ancillary issues might arise during the public probate process that requires attention, such as dealing with creditor claims. If that weren't enough, the fees incurred during the probate process are usually much higher than the fees associated with administering a revocable living trust with comparable assets. California Probate Code Section 10800 describes how the fee for the Executor of an estate is calculated:

a) Subject to the provisions of this part, for ordinary services the personal representative shall receive compensation based on the value of the estate accounted for by the personal representative, as follows:

(1) Four percent on the first one hundred thousand dollars ($100,000).

(2) Three percent on the next one hundred thousand dollars ($100,000).

(3) Two percent on the next eight hundred thousand dollars ($800,000).

(4) One percent on the next nine million dollars ($9,000,000).

(5) One-half of one percent on the next fifteen million dollars ($15,000,000).

(6) For all amounts above twenty-five million dollars ($25,000,000), a reasonable amount to be determined by the court.

(b) For the purposes of this section, the value of the estate accounted for by the personal representative is the total amount of the appraisal value of property in the inventory, plus gains over the appraisal value on sales, plus receipts, less losses from the appraisal value on sales, without reference to encumbrances or other obligations on estate property.

The lawyer handling the probate for an Executor or Administrator is also entitled to the same statutory amount.

The other major benefit is that a revocable living trust helps you avoid a conservatorship if you become incapacitated. This is because your trust can allow for a successor Trustee to step in and take control of trust assets to manage and use them for your benefit. This avoids the need to have a court proceeding to appoint a conservator to manage your affairs (which, by the way, is expensive and can be highly inconvenient for your family).

Although a revocable living trust has great advantages, there are a few disadvantages. Despite, the disadvantages, however, the benefits often far outweigh the downsides.

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.