TRUST ATTORNEYS
IN SAN JOSE, CALIFORNIA

No matter how old you are, it’s never too early to start estate planning. One of the best ways to do this is with a trust. Sadly, less than 60% of Americans think it’s important to have a will or trust. If you’re interested in adding a trust to your existing estate plan, or if you’ve only just begun looking at your options, our team at The Heritage Law Group can help get your assets in order and ensure that your loved ones are looked after.

Our offices are in San Jose and Aliso Viejo, but we proudly serve clients throughout Northern and Southern California.

Overview of Trusts 

Types of Trusts

• Revocable Trusts: As the name suggests, a revocable trust can be revoked at any time during its lifetime. These are also commonly referred to as “living trusts” because they can be modified while you’re still living. Revocable trusts are preferable to those who still want control over their assets during their lifetime with the ability to add, modify, or permanently dissolve them if needed. They also avoid probate, getting your assets allocated more quickly and at a lower overall cost.

• Irrevocable Trusts: These trusts may not be modified or dissolved after they’ve been filed. You can move new assets into the trust, but once they’re in you can’t undo it. These trusts are preferable for people who need to protect certain assets, especially from tax liability.

The Process of Creating a Trust

Setting up a trust is fairly straightforward. There are online services that can help you, but you should be cautious about these. A well-designed and written trust is essential to ensuring your assets are allocated according to your wishes and drastically reducing the chance of disputes. If an error is made or if the trust doesn’t include everything, it could end up causing more problems for your beneficiaries. Elements of creating a trust include:

1. Choosing an Advisor: The first thing to do is hire a trusted attorney with experience in estate planning. Your attorney can help you choose the right type of trust for your needs.

2. Organizing Your Assets: The next step is to inventory all of your assets and decide what you want to include in the trust and what you can leave out.

3. Designating a Trustee and Beneficiaries: The trustee can be yourself or another individual (or couple) who will be responsible for managing your trust and you can name any number of beneficiaries.

4. Drafting the Trust: You’re now ready to draw up the trust as a legal document and sign it.

5. Transferring Assets: Transfer property or assets into the trust.

Why Having a Trust is Important

• Bypass probate: Most assets in a trust don’t go through probate since your estate is already managed by someone other than you (the trustee). With a standard will, your assets need to be inventoried, assessed, and then distributed under the guidance of a court.

• Assets can be kept in trust until a future date: A trust will remain in effect after your death and can hold onto assets for minor children until a predesignated age.

• Protection in cases of mental incapacitation: If you become incapacitated and no longer able to speak, a trust can give someone power of attorney to make financial and health-related decisions on your behalf.

• Private: A will becomes public record upon your death, meaning the value of your estate and any financial holdings will be accessible by anyone. A trust will remain private even after you die.

Choosing a Trustee and Beneficiaries 

If you name yourself as the trustee, you’ll also have to name a successor trustee to serve in the role after your death. This should be someone you trust to carry out your wishes as laid out in your estate plan. This is often a family member or trusted friend, but it can also be an attorney or financial advisor.

Depending on the size of your estate, you may have multiple beneficiaries. In some cases, you may need to name a primary beneficiary and a secondary beneficiary. When choosing a primary beneficiary, many people will choose a spouse, but it’s important to choose someone who will likely outlive you and someone who will be capable of executing your wishes, with the mental capacity and willingness to take on the responsibility.