Tuesday, April 19, 2011

DIY Trusts and Wills - Why they are not the best option

One of the risks inherent in opting for a do-it-yourself estate plan is that, without the help of an experienced attorney, you can’t spot any missing pieces of the puzzle.

One such puzzle piece is what is called the residuary clause, which is an extremely important part of any will or trust and may be missing in a do it yourself estate plan.  A residuary clause gives instructions as to what should happen to property that is not specifically left to someone in other clauses of your will or trust. 

For example, if your will or trust states that your home, furniture and cars will go to your spouse, and that your jewelry will go to your daughter, but there is no specific mention as to who will get your boat, your holdhold items, your collectibles and even a bank account, then your residuary clause will control what happens to that property.

In addition, the residuary clause will control what happens to property that you leave to someone but that person dies before you and before you update your will or trust.  For instance, if you left your art collection to your niece but she dies before you, then your residuary clause would control who would ultimately inherit the property.

So what happens if you don't have a residuary clause? Any property not left to a specific person or charity would have to be probated and then divided among your heirs at law in the manner provided by the Probate Code of California. The drawbacks to this obviously is the time and expense added to the probate process, and of course, the fact that you and the state of California might not have the same ideas about who should ultimately receive your property.

Working with an experienced estate planning attorney can help ensure that your property makes its way into the hands of its intended recipients.   Call us at  925-516-1617 to see if you are property protected.

1 comment:

  1. Great advice on estate planning. My wife and I are working on our wills and trusts right now. We took the DIY approach like you mentioned. After reading this, I realize I have left a lot of loopholes and unexplained things in my wills and trusts. That is a good point you make about hiring an attorney to go over it with you.