My husband and I need to draw up wills or living trusts (am unsure which is appropriate), durable POAs, advance care directives, and living wills. We are in our 40's and have two children.
I'm in the Foreign Service and am currently based in Belgium. We are domiciled in California (file CA tax return, have CA driver's licenses, vote in CA) but do not own property there. We do own property (currently rented out) in Virginia. I am not familiar with estate law and do not know which law would prevail in the disposition of my/his/our estate if something happened to me and/or my husband.
Is it wise for me to avail myself of the "free simple will preparation" that is available to me? Or would it be best to work with an attorney? If the latter - a VA attorney? A CA attorney?
It is wise to retain competent counsel concerning your estate planning documents. If you are domiciled in California, file CA tax return, have CA driver's licenses, Vote in CA you should hire a CA lawyer. There is a Bar Association in San Diego County, California. You can contact the local Northern San Diego County Bar Association and inquire about attorneys in your area that specialize or practice estate planning. You may contact the State Bar of California and inquire about attorneys in your area that are certified specialists in estate planning as well as inquire about the record of any attorney that you are considering using for your estate plan. The State Bar of California has publications for consumers on Trusts and Estate Planning and how to select an attorney; they are available online (I just checked the website). You are wise to think about your estate planning for many reasons. Most attorneys that I know include an Advanced Health Care Directive in that package of estate planning documents and it is a good idea to have one of those whether you travel a frequently or not.
Do you want accurate, personalized, legal advice that you can rely on? You will have to hire an attorney, not ask on Avvo. I am not your attorney and am not creating an attorney-client relationship by this post. I am merely giving general advice. I am not your attorney until retained by a written retainer agreement. I am only licensed in California. See also avvo.com Terms and Conditions item 9, incorporated.
There is nothing wrong with a free will, but for many people, wills do not accomplish what they want to have done. For example, the only time a Will is used is in probate court. If your objective is to avoid probate, then that normally cannot be done with just a Will. If you are in your 40s, there is a good chance that your children are minors, or close to it. Minors cannot inherit property, so if your kids ARE minors, a trust makes the most sense to provide for them. You can also stagger the distribution of assets to your children so they do not receive everything in a lump sum when they turn 18. This can be a huge advantage, if you have a significant estate and the kids are not ready to handle that.
The one thing a Will CAN do is to name guardians for the kids, (again, assuming they are minors). This can be more important than the financial side of things, especially if there is not a lot in the way of assets.
The point is, no one can accurately tell you what you should do based on a short summary. A good estate planning attorney can sit down with you and review all of the options with you. If you need anything beyond basic estate planning, (which I would suggest that you do, given your summary), then consulting with a lawyer is by far your best bet. If it turns out that a Will will cover your current planning objectives, then you know where you can find one!
I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your state. The law changes frequently and varies from state to state.
Elder Law Attorney
Properly done Estate planning documents are parachute that protects you and your family if you are disabled or die. Unfortunately, you cannot know the quality of a cheap parachute until you jump. If it constructed correctly, all glides gently to your desired destination - no probate, reduced risk of family conflict, fewer delays and the ability to express your wishes and, if appropriate, guidance to those you have left behind.
In choosing a California attorney to assist you - you want to be certain that the attorney is familiar with international wills to control any property you have in Belgium and with the logistics of laying out your estate planning documents to use the U.S. Embassy or Consulate as your notary. Avoid attorneys who only ask you when your children should receive their inheritance - consider what standards of support you might want to provide for them at various ages and stages in their life. Many informed parents chose to limit College age distributions to a student level standard of living and for a number of years later, limit distributions to a percentage of each child's earned income. Some parents vary that matching percentage depending upon the type of work the child is doing.
I hope this information helps you help yourself and others.
Very truly yours,
Joel S. Weissler
Attorney at law
Weissler Law Group
2635 Camino Del Rio South #301
San Diego, CA 92108
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A VERY good question.
A "free will" can actually be very expensive for your family to probate later on, and while it is better than nothing, that's about all it is, it in my opinion. Once a client has gone through a probate of their parent's estate, they make a trust for their own property so their own children never have to go through probate.
You indicated that you are California residents (domiciled in California) so a California estate and trust attorney should help you. The trust can hold property in any state, so your real estate in Virginia should not be a problem. Once the trust documents are prepared with the terms you and your wife want included, they could be sent to you via expedited mail or email in Belgium where you could print them out and take them for signing and notarization, most likely to the US Embassy/Consulate office. If you and your spouse are not in close proximity at the time of signing, we have had documents signed in counterparts or by turns by sending them to one spouse and then the other with separate notary pages for each.
For funding the real estate, a Virginia attorney could be co-counseled to prepare the deed or other documents to title it to the trust in compliance with Virginia law, and that property would become subject to the trust terms.
Once we know there is real property involved, we generally recommend a trust that provides significantly greater benefits and flexibility for the beneficiaries, than a will. A trust is generally a little more expensive than a will in terms of initial set up costs involved, but well worth it considering that the cost savings in administering a trust vs. probating a will later on are enormous in my opinion. Add in the peace of mind of having your family avoid going to probate court - and it is hands down the superior estate planning tool.
Many suggestions have been made here regarding considerations for distributions to children, and all are very good valid points. You should take the time to carefully discuss and consider the almost limitless distribution methods - weighing the pros, cons, and administrative costs of each - with your attorney so that the trust (or will) achieves the equivalent of what YOU would do with your money for your children if you were still living. An estate plan is not just a bunch of documents - it is the financial substitute for a parent who is no longer around to make those important decisions for their children.
This answer is not to be construed as legal advice and no action should be taken in reliance on information given in this answer. Each case is different and fact driven, and we cannot provide legal advice without a review of all relevant documents and a consultation to obtain all relevant information.
Estate Planning Attorney
Like the aforementioned attorneys have said a "free will" is never really good idea. You pay for the advice and to have your case evaluated so that the document will not cause costly problems later.
The only caveat I would add is that a "Free Will" is usually better than "No Will". I say usually as it really depends just how bad your free will is. At some point down the road at least the judge who is left with the job of figuring out what your intentions were will have something in writing to help parse through your wishes.
The problems associated with the Will being invalid or error ridden will still be an issue and are the main reason why you should see an attorney for a simple will. Many attorneys will prepare said documents for under $1,000.
Disclaimer: The foregoing answer does not constitute legal advice, is provided for informational and educational purposes only for persons interested in the subject matter. Each situation is fact specific and may be subject to state specific laws. Without a comprehensive consultation and review of all the facts and documents at issue it is impossible to evaluate a legal problem fully. This answer does not create an attorney-client relationship. No Tax Advice - Circular 230 Disclaimer - Any information in this comment is not intended to constitute a comprehensive and complete tax consideration analysis, and may not be used by the taxpayer to eliminate or reduce penalties by the IRS or any other governmental agency, nor for the purpose of promoting, marketing or making recommendations to other persons on any tax-related matters.