Law Office of
Teddy R. McNamara
 For Estate Planning and Living Trust Services Call: 619-528-1212

Chart to explain, compare and contrast issues at incapacity and death with a Will, No Will and a Living Trust

With No Will

With a Will

With a Living Trust

At Incapacity (unable to handle your financial affairs

Court Control: Court appointee oversees your care, must keep detailed records, reports to court, and usually must post bond (even if appointee is your spouse). Court approves all expenses, oversees financial affairs.

Court Control: Same as no will.

No Court Control: Your successor trustee manages your financial affairs according to instructions in your trust for as long as necessary. (in some state, court intervention may be required for health care decisions.)

At Death

Probate: Court orders your debts paid and assets distributed according to state law.

Probate: Same as no will, but assets distributed per your will (if valid and any contests are unsuccessful).

No Probate: Debts paid and assets distributed by successor trustee according to instructions in your trust. Avoid Med-Cal Lien if assets are in Living Trust.

Court Costs, Legal & Executor Fees

At Death: Often estimated at 3-8% of estate's value. At Incapacity: Impossible to estimate.

Same as no will. Costs can increase if will is contested.

At Death: Usually none if no estate taxes. At Incapacity: None. (Attorney can be helpful for larger estates.)


At Death: Usually 9 months to 2 years before heirs can inherit. At Incapacity: Court involved until recovery or death.

Same as no will.

At Death: Usually just weeks (larger estates may take longer for estate tax filing). At Incapacity: No delays.

Flexibility & Control

None: Court processes, not your family, have control at incapacity and death. When you die, assets are distributed according to state law.

Limited: Same as no will except, when you die, assets are distributed according to your will (if valid and any contests are unsuccessful). You can change your will at any time.

Maximum: You can change/discontinue your trust at any time. Assets stay under control of your trust, even at incapacity and after your death. More difficult than a will to contest.


None: Court proceedings are public record. Family can be exposed to disgruntled heirs and unscrupulous solicitors

None: Same as no will

Maximum: Living trusts are not public record. Your family can take care of your financial affairs privately.


You should have four basic legal documents;
  1. Advance Health Care Directive
  2. Durable Power of Attorney for Asset Management
  3. Living Trust and Will with pour-over provision


You should review the facts and establish;
  1. Living Trust with Pour-Over Will
  2. Declaration of Community and Separate Property 
  3. Title to your Home as Community Property with Right of Survivorship
  4. Advance Health Care Directive
  5. Durable Power of Attorney for Asset Management
  6. General Assignment to transfer assets to Trust


The family planning includes the following for children;
  1. Nomination of Guardians for your minor children
  2. Gifts to Children into Uniform Gift to Minors accounts, or better
  3. Living Trust distribution plans for the children

Often, more than one area of expertise is required. With us, there's no need to hire a multitude of attorneys. We can provide you with comprehensive legal support allowing us to advocate for you in many areas of law.

Our team of dedicated legal professionals is well-versed in many specialized areas of law, bringing a diverse background to the table. This gives us an edge when dealing with complex legal matters.

We will not advocate for you in any area in which we are not experienced.

We offer free initial consultations. 

Law Office of Teddy R. McNamara
313 Laurel Street
San Diego, CA 92101
Office: 619-528-1212, Fax: 619-501-2565

Questions about Estate Planning

Do you know the difference between a trust and a will?
If you have a will at the time of your death, your estate is required to go through the probate court unless your estate totals less than $150,000. If you establish a trust, however, the administration of your estate is handled privately without court involvement.

Can a simple living trust protect me from death taxes?
Although everything in a standard living trust is considered yours for estate tax purposes, it does not allow you to avoid estate taxes. However, when other estate planning techniques are used, a simple living trust can help you reduce or eliminate estate taxes.

Isn't estate planning just for very wealthy people?
Estate planning is an important step for any person who owns real estate or has assets with a total value of over $166,250. People with minor children, children from different marriages, or disabled heirs should also consider getting their legal affairs in order. Estate planning can protect what you have, even if your total holdings are minimal. 

Can I handle estate planning myself?
Some of the most common errors are made when individuals attempt to use standard "do it yourself" forms. Typically, the amount saved by handling these matters yourself could cost you very large sums in estate taxes or other penalties. When you weigh the costs, hiring a professional to properly create your estate plan now may cost much less than having your family try to correct the errors after you die. 

What steps should you take after a divorce to protect your children's financial future?
First, check the beneficiaries listed on your retirement accounts and insurance policies to make sure your children - not your ex-spouse - will get these funds. The second step is to create a new will or trust which includes provisions to eliminate the risk of your children losing or squandering their inheritance. 

Do you know how a conservatorship could affect you and your family?
If a family member is unable to manage his/her own affairs, because of Alzheimer's or otherwise, you may not be able to assist your loved one unless the court appoints a conservator for your family member. Conservatorships are expensive, slow, and cumbersome court proceedings for people who didn't plan ahead. The good news is that conservatorships can be entirely avoided if you have a proper estate plan in place.

Are you familiar with the "probate" process and how you can avoid it by having a trust?
Probate is the court process of distributing your property. It is expensive and slow, and all of the records pertaining to the process become public record. During probate, the court appoints a person of their choosing to handle your affairs. If you establish a living trust, you designate a trustee to handle your affairs and distribute your property according to your wishes more quickly, cheaply and privately than a probate. 

Do you know how having a Healthcare Power of Attorney, also called an Advance Health Care Directive (POA) can help you or a loved one die with dignity?
Without a Health Care Directive or POA doctors and hospitals may be reluctant to suspend medical treatment regardless of how futile or costly it may be. By designating someone you trust and outlining your wishes with a health care directive, you can guarantee that you will die with dignity.