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. 

A basic function of estate planning is to make sure the people or organizations that you want to receive your property actually receives it, but have you really thought about how that would work? Would you just give a lump sum to your teenage son or daughter? If you left money for a charity, how would you know they are using it in the way that you want? What if a person you wanted to leave something to passed away before you--who would get it then? If you have a business, will your partners buy you out? Or, will your family join the business and work in it?

Some Basic Techniques

As a general rule, I think the "KISS" method works quite well in estate planning. (KISS = "Keep It Simple, Stupid") The more complications that get introduced to a distribution scheme, often the more failure points you may be introducing. That being said, there are some basic, tried and true techniques that work and are often good to implement. Here are some of them:

1. Leaving gifts to a young beneficiary in a trust that call for distributions at various ages. Or, if the amounts are rather small, utilizing "CUTMA" to hold the property for the beneficiary until he or she reaches a certain age.
2. Utilizing a marital trust to hold property for your spouse to give him or her lifetime enjoyment of those assets, but also ensure that specified beneficiaries (often children) will receive whatever is leftover.
3. Providing that where a named beneficiary fails to outlive you, the property going to that person will get distributed among his descendants. This is a commonly used provision where you want to benefit not just the beneficiary you've named, but also that person's family.

If you engage an estate planning lawyer, you will undoubtedly face one or more of these concepts depending on your situation (e.g., whether you are in a relationship or have children).

Without proper estate planning, your eventual incapacity or death can result in a number of expenses and possible taxes that could otherwise be minimized. Here's a rundown of some of the common ones that come up:

Probate

One of the primary reasons that California residents create an estate plan is to avoid the time and expense of probate. Often through a simple vehicle such as a revocable living trust, you can develop a uniform plan that can eliminate the cost, publicity, time, and intrusiveness of a probate proceeding.

Real Property Taxes

California residents enjoy the benefit of "Proposition 58" which is a law that relates to transfers of real property from parent(s) to child(ren). Under this law parents are able to transfer their personal residence and up to $1,000,000 in assessed real property (during life or at death) to their children without having the transferred real estate be reassessed for real property tax purposes. In simple terms, children are able to pay the same low property taxes that their parents paid. Without proper planning, however, parents may be unwittingly giving up this benefit.

Estate Taxes

As of the date of this writing, the estate tax exemption amount (in simple terms, the amount of assets you can transfer to others without incurring estate tax) is just north of $11 million dollars. As a result, few people currently face this issue. However, this exemption amount is scheduled to go back down to approximately $5.5 million on January 1, 2026, which could bring many more people into taxable territory. Certain estate planning techniques can be used to defer the payment of estate taxes.

Income Taxes

Where appropriate, a competent estate planning lawyer will undoubtedly explain possible income tax consequences as well. For example, use of retirement assets to fund charitable gifts or an explanation of the "cost-basis" adjustment of your assets at the time of death, are both important considerations that you should know about. In addition, some types of trust structures may require ongoing income tax filings (and the expenses associated with tax preparation) that you should know about.

Generation Skipping Transfer Tax

A different type of tax exists for special types of transfers that "skip" a generation. For clients with large estates (generally those that will face estate tax) this is often an important topic to visit.

Legal Fees

Although not a "tax" in the traditional sense, it bears noting that when an individual dies without an estate plan, it can often throw families into disarray and cause them to engage a lawyer who then must sift through all of the decedent's information to figure out who gets what and what types of liabilities existed. Proper estate planning can allow families to minimize the legal process after your death since there will be a set of instructions on how exactly your estate is to be managed and/or distributed. Moreover, if you've worked with a lawyer, he or she most likely has a sense for the types of assets that you own and can often be a guide in the post-death administration process.

Many people fear the cost of establishing an estate plan, but when faced with the multitude of possible expenses of not having an estate plan, generally, the question is "can you afford not to have an estate plan?"

A major motivating factor for many of our clients is the birth of a new child. Another key event is the death of a loved one. This prompted me to think about some of the other avenues that people find their way to an estate planning lawyer:

1. If you have young children, you may visit an estate planning lawyer to make sure that you've named a guardian in case something happened to you or your spouse.
2. If you have assets, you may want to set up one or more trusts to ensure that the property you leave to your young children or other family members will be managed properly.
3. If you have children, family members with disabilities, or family members who are receiving government benefits, you may want to identify a way to provide them with assets without jeopardizing the government benefits that they receive, which may entail the use of a special needs trust.
4. You might be the beneficiary of your parents' or another person's trust and want to know your rights under the terms of that trust.
5. If you're in a same-sex relationship, you may want to learn about the implications of entering into a registered domestic partnership or marrying your partner. These discussions might include tax and property consequences as a result of your union.
6. You might own a business and are unsure of who or how you will transition the business once you pass away.
7. Perhaps you have specific wishes with respect to your health care or burial and want to make sure that those wishes are carried out if you ever become disabled, or when you pass away.

These are just some of the reasons why clients seek out an estate planning lawyer and can serve as a checklist for you and your family situation.