Wills and Trusts, Planning for “What if…” (Part 3 of 4)

This is a continuation of last week’s informational post on Wills and Trusts, a Q&A with Steve Araiza, a lawyer in West L.A.

Steve Araiza is a work-from-home dad that says his primary job is taking care of his one year old daughter, Isla.  But when he’s not wrangling a toddler he spends his spare time preparing estate plans.  He graduated from UCLA Law in 2009 with a specialization in business law, specifically focusing on taxation.  After graduating from law school, he worked with Southern California Edison until Isla came along and decided to build his own legal practice.  You can find him online at www.thinktrusts.com

Disclosure: While Steve Araiza is a lawyer, he is not offering legal advice. Posts on legal matters are intended to provide legal information and do not create an attorney/client relationship. 

Q.  When a will is executed, what happens and who should be contacted?  Is this a case where one should already have chosen a lawyer?

A.

A will lays out certain instructions for what is to be done after your death. One of those instructions should be to name the Executor of the will.  This is the person (or institution) that will collect all of your assets, and then set about dealing with any outstanding debts, expenses or taxes that may be due.  Once that’s done, with a court’s approval, they can begin distributing your assists based on your instructions.

So, when a person dies — ideally they should have kept their estate plan in a location that the Executor or someone in the family can find it.  The estate plan should list pretty clearly who the Executor (and Trustee if there is a trust) is, and whom the attorney that prepared the estate plan is.

At that point, the Executor or family member should probably get in touch with the attorney that prepared the estate plan.  Some estate planning attorney’s don’t handle probate, but even if they don’t they can usually refer you to someone who does.  And the Executor can then work with that attorney, or another attorney of their choice, to get the process moving.

Q.  Is a will associated with your state of legal residency?

A.

The probate process will be carried out in whatever state the deceased was permanently living in at the time of their death, along with any states the deceased holds property in.  In other words, a person who holds property in multiple states may leave behind a will subject to multiple probate proceedings.  A will should generally be accepted in each of those proceedings as long as it was drafted and signed with all of the proper formalities required in the state that it was drafted in.  In other words, if you create a valid will in California and then move to another state, the will is generally still valid even if some of the requirements for a will in the other state are different from California.  That said, there are certainly exceptions: certain provisions of a will that are legal in one state may be stricken in another, some states may not recognize holographic wills even if they were legal in the state they were created in, etc.  As such I would always recommend reexamining your will with an attorney from the appropriate jurisdiction any time you move to another state.

Special Thanks to Steve Araiza for contributing to this post.  Please visit him online at thinktrusts.com
Check-in next week for the finale of this four-part series!