FAQ

San Jose Attorney Linda J. MacKay | Santa Clara County Lawyer

Revocable Living Trusts – General Questions & Answers
A Living Trust is an instrument that directs how your estate is managed and distributed upon your death or incapacity. Assets administered through a Living Trust are not subject to the Probate court process, and a Living Trust can provide for management of assets during your lifetime if you are ever incapacitated.
One of the primary differences is that assets administered through a Will are subject to a Probate court proceeding, whereas those administered through a Living Trust are not. A Living Trust can also help with management of your assets during your lifetime if you become incapacitated, whereas a Will does not, and a Living Trust can administer more complex distribution provisions and scenarios.
Probate is a costly, time-consuming, public court process through which your estate must pass if you do not have a Living Trust in place.
The current probate limit in California is $150,000, so if the total gross value of your estate exceeds this amount at your death, it will be subject to Probate. Therefore, if you own real estate in California, it is almost certain that a Living Trust is right for you.
An important reason to have a comprehensive Estate Plan is to nominate a guardian to take care and custody of your children in the event of death or incapacity. This document is included in our Living Trust Package, and we can help guide you in your selection of the right persons.
If you have no estate plan in place, your children could inherit your entire estate at the age of eighteen (18). With a Living Trust, assets can be managed until the age(s) you determine would be appropriate for inheritance.
If you (and/or your spouse) are not a citizen of the United States, you can still execute a Living Trust but there are additional tax issues to address. Our office will advise you of these tax considerations and discuss tax and estate planning strategies specifically designed for non-citizen.
Yes, our office has helped many such couples establish estate plans to manage and distribute their estate at death, as well as documents to address tax considerations, finance management, and health care decisions that are unique to these couples.
Yes, a Revocable Living Trust is revocable and amendable during your lifetime. This allows you to make changes to the Trustees or beneficiaries, or any other terms, while you are living. Of course, this is true only if you possess the necessary physical and mental capacity to do so at the time.
Living Trust Consultation – General Questions & Answers

• Revocable Living Trust
• “Pour-Over” Will
• Guardianship for minor children
• Power of Attorney
• Advance Health Care Directive (Living Will)
• Health Care Information Authorization
• Trust Transfer Deeds

Before attending your initial consultation, please obtain our Living Trust Questionnaire so that you can provide the data about yourself, your family, and your assets that allows us to advise and help you. You may also wish to bring the following:

• A copy (original document is not required) of the Deed for your home(s). If you are unable to locate the deed, our office can usually obtain one for you for an additional fee.

• Your checkbook to make payment if you elect to engage our office for the drafting of your Living Trust documents.

• Any Estate Planning documents you currently have in place (if applicable).

This meeting is generally about one hour. There is no fee or obligation for the initial consultation appointment. Please contact our office to schedule.
Yes, both spouses are required to be present for the initial consultation. This can sometimes be accommodated via teleconference or video conference such as Skype or Google Hangout.
After your initial consultation, our office generates a document draft and this is sent to you for review. We will answer any questions you may have about the documents and can make final edits if you desire any changes. Once the final document draft is approved, we schedule an appointment for you (and your spouse, if creating a joint Married estate plan) to execute your documents by signing with our notary. That signing appointment is usually about one hour.
Our office will prepare and record Trust Transfer Deeds, which transfer your home(s) or other real estate property holdings into your Living Trust. We can also prepare and execute documents that assign business interests to your Living Trust.
This process is called ‘funding’ the trust, and we will provide a Trust Certification document and a list of instructions in order for you to handle the titling of many of your assets yourself.
The fee can vary depending on a number of factors, including the complexity of your desired estate plan. The exact fee can be determined during your initial consultation and is usually quoted as a flat rate.
Tax Preparation Services – General Questions & Answers
I am a new client, what should I bring to my appointment? Bring all your tax statements for the filing year and a copy of the return you filed the previous year so it can be used for reference.
Tax consultation appointments are available Monday through Friday, during business hours.
Tax Preparation services are charged on a flat-fee basis. This can vary based on the complexity of your return. If you require additional schedules (such as dividend and interest on Schedule B, business information on Schedule C, capital gains and losses on Schedule D and/or rental income and losses on Schedule E); supporting forms (such as those for the child tax credit or additional charitable donation information); or whether your return has “out of the ordinary” line items (like Roth IRA conversions or homebuyer credit repayment), this may affect your fee.
Yes, our office does offer this option. It is the fastest way to securely process your return and receive your refund, if any. According to irs.gov, more than 1 billion individual tax returns have been safely and securely processed since the debut of electronic filing in 1990.
Yes, we can prepare and e-file your return and the IRS also accepts electronic payments for the taxes you owe, or you can mail a check and send it in via USPS.
Preparation, printing and assembly of your tax return will take place after your tax consultation meeting and can be e-filed or sent to you to sign and file via U.S. mail.
If our office prepared the return for the year that is under audit, we can provide representation. This is not included in your tax preparation fee and is subject to additional hourly fees.
Make sure you understand everything and are comfortable with the accuracy of the return.
Urgent or Emergency Estate Planning Needs – General Questions & Answers
Yes, we are usually able to accommodate these needs and expedite the completion of the Living Trust. This may be subject to an additional fee.
Yes, our office has a skilled and experienced mobile notary on staff, serving the Santa Clara County area. This may be subject to an additional fee.
Review and Update of Existing Living Trust – General Questions & Answers

Yes, the law changes frequently and a thorough review on a regular basis helps ensure that your documents are keeping current with the law. You may also need to consider a review of your current Living Trust if you have experienced any of the following life developments:

• Growth of assets or significant changes in type of assets

• Change in Marital Status

• Family events such as births, deaths, divorces or children reaching the age of majority

• Purchase or refinance of real estate property

Trust Administration Upon Death – General Questions & Answers

Yes, our office can assist with Administration of a Living Trust upon Death. There are important issues that must be addressed when someone passes away – even if the successor is the surviving spouse. Some of these critical and time-sensitive issues are:

  • Notification of Beneficiaries and Heirs
  • Asset Valuation, including:
    • Establishing Tax Basis of Assets
    • Obtaining Real Estate Appraisals
    • Estate Valuation
  • Making Tax Elections and filing an Estate Tax Return, if needed
  • Preparation and recording of an Affidavit of Death to remove deceased from title to real estate property and financial accounts
Don’t Make this Common Mistake
Yes. Don’t make the mistake of putting it off – this vitally important planning should be done now, especially if you have young children, elderly parents or others who rely on you for support. Although we all hope to live a long and prosperous life, there is always the possibility that illness or accidents will alter life’s course. Take this crucial step now, and create the peace of mind that comes with knowing you are prepared.

Law Offices of Linda J. MacKay

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Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Law Offices of Linda J. MacKay
1361 S. Winchester Blvd. Suite 210
San Jose, CA 95128
408.379.9600

Contact the Law Offices of Linda J. MacKay

The Law Offices of Linda J. MacKay serves the cities of San Jose, Santa Clara, Cupertino, Campbell, Los Gatos, Saratoga, Sunnyvale, Mountain View, Palo Alto, Stanford, Fremont, Morgan Hill, Gilroy, as well as as greater Silicon Valley and the San Francisco Bay Area.

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