Special to the Village News
If you are counting on leaving your heirs to figure out how to distribute your estate, you can also usually count on leaving a legacy of confusion, bitter feelings, and a divided family.
The best way to prevent all that potential family drama is to identify the assets in your estate and prepare a will or a trust, according to Carl Morrison, attorney and estate planning professional.
“I have seen what happens to families when people don’t do estate planning and their heirs end up having disputes over the assets. It’s very sad, especially since deciding how to divide the estate could have been done beforehand and everything made so much easier for the heirs,” said Morrison, whose Morrison Law firm is located at 5256 S. Mission Road in Bonsall’s River Village plaza.
However, in addition to identifying your assets, such as real and personal property and creating clear instructions about how you wish your estate to be distributed, understanding whether to set up a will or a trust is important because issues such as probate can also be a factor, he added.
“For some people, setting up a will works best for the type of assets they have, and it is less expensive than creating a trust,” Morrison said, explaining that a will is a document that goes into effect only after the death of the estate holder, has a nominated executor (chosen by the decedent) and goes through probate which is the court-administered process of transferring legal title of property to beneficiaries.
If someone dies in California without setting up a will or trust to assign to whom and where he or she wishes their estate to go, then state law is used to distribute the estate to remaining spouses and children. That can end up “costing thousands of dollars in attorney fees in legal challenges, extending the probate for years, and diminishing the value of the estate substantially,” said Morrison. “And the heirs usually receive less then they would have if there had been a will or trust.”
Also, creating a will or a trust allows parents to nominate a guardian or guardians for minor children should both parents die, he added, explaining that in the event no trust or will is in place to designate who shall care for minors, “the court decides where the kids go. And often family members fight over who is best to care for the children or because they want money from the estate to help raise them.”
Setting up a trust is another option for estate planning, particularly if there are real property assets such as houses or land, in addition to assets such as bank accounts and 401Ks, according to the attorney.
A trust is a legal arrangement through which the “grantor” (the estate holder) holds legal title of his or her assets as a “trustee” of the estate. Upon his or her death, titles of estate assets held in the name of the trust are then transferred to “successor” trustees who could be adult children, other relatives, or a corporate institution such as a bank. Additionally, a trust differs from a will because it allows distribution of property during the asset holder’s lifetime, and using a trust avoids probate.
It is also wise to do estate planning in this modern era of blended families to ensure that the heirs of each spouse receive the assets their own parent wishes to leave to them, said Morrison, and “children from a parent’s first marriage do not end up being disinherited should their mother or father marry someone else later on.”
There are several types of trusts, and, due to the various kinds of documents needed to be processed, setting them up is more expensive than setting up wills. Although some documents can be purchased at much lower fees from online websites such as Legal Zoom, many forms including those applicable to merged family situations, may not be available at self-help sites.
“Generally, because there are forms which Legal Zoom does not provide, it breaks down to being about the same in cost to use an estate planning professional,” said Morrison. “Some of the forms can be tricky to understand, and it’s always recommended to have an attorney look over your documents before you sign them.”
Morrison, who moved to Fallbrook in 1976, has 40 years of experience as an attorney, including a decade of legal assignments in defense, prosecutorial, administrative law, and legal assistance during his service in the United States Marine Corps.
Besides estate planning, Morrison Law presently offers services in real estate transactions, family law, contract law, elder law, and other aspects of the law as well as for public agencies requiring legal counsel.
As an attorney, Morrison has seen many variables of the human story over the years, and he always tries to help his clients from making strictly emotion-based decisions that could have long-term negative consequences with their families and loved ones.
“I am not here to judge my clients. I am here to guide them with their estate planning,” he said, adding with a smile, “I guess there’s a reason that attorneys are also referred to as legal ‘counselors’.”