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In California, anyone who owns a home or other substantial assets may benefit from executing a living trust.  From tax advantages to avoiding unnecessary court proceedings to providing a safety net during your lifetime to addressing specific needs in your family, a living trust might be the right estate planning paper for you.

A California estate planning attorney can talk to you about your situation and explain the benefits of different types of estate planning documents.

A Revocable Living Trust Offers Many More Options Than a Will

Living trusts can provide opportunities that a will cannot, for example:

• You may name one or more successor trustees to manage your financial matters during your lifetime, in case you become incapacitated or simply want to go off on an adventure and not be bothered with management of your assets.
• A living trust can manage your assets and provide for your beneficiaries for many years after your death, unlike a will. For example, if you have young relatives that you want to benefit after your death, their shares may be held in trust until they reach adulthood or even later in their lives, to ensure the assets are used responsibly and protected from their creditors. 

There are many other types of specialized living trusts that could provide valuable benefits for you and your loved ones. An estate planning attorney can discuss the different kinds of living trusts that could be useful in your circumstances.

Living Trusts Allow More Privacy Than Wills

Unless there is a challenge to the document, a living trust does not have to go through probate.  Most trust instruments therefore never become public documents, and their terms may be kept confidential except from your beneficiaries and heirs after you die.

Living Trusts May Help Avoid Costly, Time-Consuming, and Public Probate Court Proceedings

In contrast, a will has to go through the probate process and to be approved and administered by a court after you die.  The court will then oversee the administration of the deceased person’s estate for a period that may take a year or more. If an individual dies without leaving a will or trust, their estate may still have to go through the probate court. A living trust, on the other hand, generally does not need to be filed with the court, so it does not become a matter of public record. If you would like to learn more about how a living trust could be advantageous for you and your heirs, you can talk to a California estate planning attorney. Get in touch with our office today for legal help, we offer a free consultation.

If a friend or loved one dies with only a will, or with no estate plan at all, you may be required to file a probate petition before you can take control or possession of that person’s assets. Failing to do so, and taking or distributing the assets without the proper procedures, may lead to penalties and damages that far exceed any benefit you may receive.

If you take control of an estate that is required to go through probate in California, but you do not file the probate case, you could face severe civil and criminal consequences. Not every estate has to go through probate, but most non-lawyers do not understand the factors that determine which estates must be probated.

With so much at stake, you will want to talk to a California estate planning attorney about whether your loved one’s estate has to go through probate and to learn what happens if you don’t file a probate in California. Keep in mind that you may not have to personally do the work of administering an estate.  The law provides that you may hire an attorney to do the job for you, and the fees will come out of the estate, not out of your pocket.

Here are some consequences of not filing a petition to probate a will:

Creditors Will Have Extra Time to File Claims Against the Estate

One benefit of timely filing a probate petition is that the filing may establish deadlines for when the decedent’s creditors can bring claims against the estate.  Creditors generally have just four months to file claims after the court appoints an executor of the will or an administrator of the estate. If you do not open a probate case, the clock does not start ticking right away, and the creditors may have more time to pursue their claims.

You Cannot Open a Bank Account to Pay the Debts of the Estate

Typically, after you file the will with the court, you ask the court to issue letters of administration that give you legal authority to do things like pay the expenses and debts of the estate and get access to the decedent’s accounts and other assets. 

A bank is highly unlikely to give you permission to open an account in the name of the estate to pay claims for the debts of your deceased loved one. Those claims can remain in limbo for some time. Also, creditors may go after you personally for your failure to notify them of the death of your close relative.

You Cannot Transfer the Estate Assets to the Heirs and Beneficiaries

In cases where a probate is legally required, the only way to legally transfer property to the named beneficiaries is to file the will or open the probate with the court and go through the probate process. Just as debts can remain in limbo, the real estate, cars, and other property of the decedent may remain in the decedent’s name until legally transferred.

You Could Be Personally Liable for Expenses of the Estate and Financial Harm to the Heirs

If you take possession of the estate assets but fail to follow through with the proper procedures, then you may find yourself liable for any damages that result.  For example, the failure to pay the expenses of the estate, or to timely transfer assets to the beneficiaries, could cause harm to the estate and to the beneficiaries. Being unable to close out the estate can create increased expenses due to the delay. You might have to pay those expenses personally if your failure to file the will or pursue the probate process caused the delays and increased expenses.

The value of some assets might go down because of the delay in getting those items transferred to their rightful recipients. Those beneficiaries could seek to hold you responsible for the financial hardship you caused.

The Other Heirs Could Have the Court Remove You as Executor or Administrator

If you do not follow California law concerning your fiduciary duties as executor or administrator of an estate, the other beneficiaries could file papers in court and ask a judge to remove you from that role. You might have to provide an accounting of your actions to the judge.

You Could Face Criminal Charges if You Fail to Comply with Required Probate Procedures

In some cases, if a person wrongfully takes possession of the estate assets, or intentionally conceals a will for their own benefit, they can face criminal charges for those actions. Considering the inconvenience and other potential consequences of failing to take a will through probate, or to open a probate where there is no will, it is usually best to talk to a California estate planning attorney about your legal obligations. Please reach out to our office today for a free consultation. We are here to help.

When planning for a person with special needs, you have more than one option. In some situations, a special needs trust might be a good choice, but in some other circumstances, you might have a better option.

Special needs trusts are sophisticated legal documents that must comply with multiple rules. If you make a mistake, you or the beneficiary might not get the results you hope to achieve. You should consult with a California estate planning attorney about these issues, including whether a special needs trust is appropriate for your or your loved one’s needs.

The Advantages of Special Needs Trusts

Many people with special needs, including those with health issues or who are unable to handle their own financial affairs, may receive valuable government benefits like Medicaid and Supplemental Security Income (SSI) to help provide for their support. These programs may have strict income and asset limitations so that a person with economic means may be unable to qualify for these benefits. If an individual with special needs receives an inheritance, personal injury settlement, or some other windfall, for example, that money could cause them to lose these benefits or have them substantially reduced.  

Such beneficiaries may be left without the health insurance or monthly stipend they receive through these programs, and they may lose or reduce their eligibility for assistance with housing, nutrition, transportation, adult day programs, and other public benefits they would otherwise receive.  

A special needs trust can eliminate this unwanted consequence by providing that the windfall goes into a trust for the person’s benefit, rather than directly to the person with special needs. Since the trust beneficiary does not own the assets, the money will often not count as their income or assets, so they may not lose their eligibility for Medicaid or SSI.  

The Downsides of Special Needs Trusts

Along with the benefits of a special needs trust, there are also some downsides.

For example, after the individual with special needs dies, the assets remaining in the trust may go to the government to reimburse taxpayers for the money spent on the beneficiary throughout his or her lifetime. Other family members or friends may only inherit what little, if anything, remains after the government gets reimbursed. 

Also, if the trust is not set up properly or the trustee uses the assets for a purpose not allowed with these unique trusts, the special needs trust could get voided, defeating the purpose for which it was created.

Alternatives to Special Needs Trusts

There are alternatives to special needs trust, but you should be careful to ensure that those alternatives don’t limit the recipient’s access to public benefits.  

For example, you could create an estate plan to leave assets directly to the person with special needs, but you would need to be sure you consider the potential loss of that person’s benefits. If the gift is substantial, it may in some cases be sufficient to support the person even if they lose their government benefits.  Still, this situation should be avoided if possible, to ensure that the benefits remain available if needed.  

Even if the gift is sufficient to compensate for the lost benefits, it may be best to create a living trust to oversee the disabled person’s financial matters and to reduce the likelihood of someone taking advantage of the special needs individual. Also, this option may allow siblings or other relatives to eventually inherit what the disabled person does

not use. A person with a short life expectancy could be a candidate for this option.

Another alternative to a special needs trust is to leave the disabled person’s portion of the estate to a third party, like a sibling, to hold for the individual with special needs. The danger in selecting this option is that the third party might not use the assets for the disabled person, or might be swayed by another person, such as a spouse or child, to use those assets for their own benefit. Also, unless done carefully and with full transparency, this strategy could be viewed as a fraud on Medicare or SSI, causing a myriad of adverse consequences.

A California estate planning attorney could talk with you about your situation and draft the documents that meet your goals and needs. Get in touch with us today.

Loew Law Group services clients through San Mateo County including the cities of Belmont, Burlingame, Foster City, Hillsborough, Redwood City, and San Mateo, as well as in all Bay Area counties and throughout California. 

One of the frustrating aspects of handling a close relative’s estate after they die is trying to find all of the essential financial and legal documents. You might find the deceased person’s will, but it might be quite old, making you wonder if it was revoked and replaced by a later will or trust. Sometimes, all that you can find is a copy of the will. The original might be in a safe deposit box somewhere or in a lawyer’s office.

Is it possible to probate a copy of a will without the original in California? This situation is tricky, so it would be best to seek the advice of a California estate planning attorney on how to proceed.

The General Rule in California When You Cannot Find the Original Will Document

Most states follow the general rule that the court will presume that the original will was destroyed or revoked if the family or person administering the estate cannot find the original document. California Probate Code § 6124 (CA Prob Code § 6124 (2020)) lays out how California approaches this issue:

“If the testator’s will was last in the testator’s possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator’s death, it is presumed that the testator destroyed the will with intent to revoke it. This presumption is a presumption affecting the burden of producing evidence.”

Like many other legal presumptions, however, this presumption is rebuttable. In other words, it might be possible to convince the probate judge that the decedent did not destroy the will and that the copy you found is, indeed, the most recent will of the deceased, and was not revoked or modified by any later wills, trusts, or codicils.

What Happens if the Judge Refuses to Accept the Copy of the Will

If the judge is not convinced that the copy of the will accurately represents the decedent’s actual final wishes, the court may find that the deceased person died intestate. Dying intestate means that a person did not have a valid will or trust at the time of death.

In that event, California’s laws of intestacy, not the decedent, will decide who gets the deceased person’s estate and in what proportions. Here are a few things you might want to know about intestate succession in California:

• Intestacy can apply to a deceased person’s entire estate or any portion of an estate that does not get distributed through the decedent’s will, trust, or another legal device like making a bank account “payable on death” or naming someone as the beneficiary of a life insurance policy.
• The intestate share of a surviving spouse in the decedent’s community property is half of the community property that the decedent owned.
• If the intestate deceased person did not have any surviving children or other issues, or any surviving parents, siblings, or issue of a deceased sibling, the surviving spouse may receive the entire intestate estate.

A California estate planning attorney can help you deal with the many situations that can come up during the administration of an estate, whether the decedent left a valid will or trust or died intestate. Contact our office today for a free consultation.

Loew Law Group services clients through San Mateo County including the cities of Belmont, Burlingame, Foster City, Hillsborough, Redwood City, and San Mateo, as well as all Bay Area counties and throughout California.

Palliative care is often referred to as pain management or comfort care and is an option that many people choose as part of their end-of-life care plan. 

Hospice and palliative care are similar, but not the same.  Hospice care is typically provided at or near the end of a patient’s life.  However, a patient may receive palliative care at any point during an illness or after an injury, at any stage of one’s life, and not only at the end of life.

A California estate planning attorney can help you include the option of palliative care in your estate plan. Let’s discuss palliative care and planning for future medical needs. 

An Overview of Palliative Care

Palliative care seeks to improve the quality of life for people with medical conditions that cause ongoing discomfort. For example, pain management may be just one type of palliative care. The specific services a person could receive as part of palliative care will vary depending on the individual’s situation. 

While the goal of palliative care is not necessarily to try to cure the person’s illness or injury, improving a patient’s comfort and quality of life can help to restore some normalcy to the individual. Sometimes, healthcare services designed to cure or improve the individual’s medical condition can improve their comfort. For example, certain types of physical therapy can improve range of motion, strength, and mobility, which can improve a person’s quality of life.

How Palliative Care is Different from Hospice

People often use the term palliative care as a synonym for hospice, but they are not identical. Here are some of the most significant differences between hospice and palliative care:

• Hospice generally is available only to patients whose diagnosis gives them a likelihood of living less than six months. The goal of hospice is to help the patient be as comfortable as possible during their remaining time of life. You do not need to be terminally ill to receive palliative care.
• Hospice services do not include curative care, in other words, treatments designed to try to cure the underlying disease. While palliative care does not focus on curative treatments, palliative care does not exclude curative treatments. 

Depending on the details of the specific hospice or palliative care program, there could be additional differences between the two.

Estate Planning Can Help You Exercise Control Over Receiving Palliative Care 

Many insurance policies cover hospice care. Also, Medicaid and Medicare provide some hospice services. Palliative care is a specialty that is only recently receiving the attention it deserves, so not all insurance policies cover these services. A few Medicare plans provide some coverage for palliative care. 

People with medical conditions that cause chronic pain and discomfort might not have coverage for palliative care because they are expected to live longer than six months. Insurance might pay a portion of some palliative care services or prescription drugs, but comprehensive coverage of palliative care has not yet arrived for most people. It can be a challenge to have an acceptable quality of life in this situation.

In addition to standard estate planning documents like a will or a living trust, you might want to consider having your lawyer draft a durable power of attorney that authorizes the person you name as your attorney-in-fact in your power of attorney to obtain palliative care if you are unable to communicate that wish for yourself at some point in the future. Your California estate planning attorney may be able to help you to choose an insurance plan that provides palliative care, to make a financial plan for palliative care, and to engage in Medicaid planning that could help you qualify for benefits to help pay for your medical care. Contact our office today for legal help. We offer a free consultation.

Small business owners must often incorporate their estate plan with a business succession plan. Having an estate plan ensures that your wishes for your business are carried out after your death. Whether you want to pass the business to another person or liquidate the business, our California estate planning attorney can help you identify your goals and draft an estate plan that meets those goals.

Deciding What Happens to the Business After Your Death

The first step is to decide what you want to do with your business after your death. If you are a sole proprietor, you can choose to either pass the business to another person or to close and liquidate the business upon your death. However, if you have partners or co-owners, they may not want to shut the business down after your death.

Your business operating agreement and the documents filed to create your business should address what happens to your interest in the company upon your death. In some cases, you may pass your interest to your heirs. However, the corporate documents might dictate that the co-owners or the company may purchase your interest in the business from your estate.

A buy-sell agreement is one way to handle your interest in the business upon your death or disability. The buy-sell agreement allows co-owners to purchase your interest in the business. The proceeds from the sale pass through your estate according to the terms of your Will.

However, if you intend to leave your business to your family or other heirs, you will need a business succession plan. A business succession plan designates a person or persons to take over your business after your death or if you become incapacitated. The plan is a detailed roadmap for preparing family members or others to take over the company and address other legal matters.

Considering Tax Consequences for Your Estate and Family

Another critical component of estate planning for small business owners is tax planning. You do not want your estate or heirs to be burdened with estate and gift taxes after your death. An estate plan can help you reduce or eliminate taxes. You might want to consider using a trust to hold your interest in the business. 

The assets of a trust pass to the trust beneficiaries outside of probate. Depending on your situation, you could create a trust that continues after your death. An estate attorney can help you explore the various options for protecting business assets before and after your death. 

Consider Purchasing Additional Life Insurance Coverage 

Life insurance is an essential consideration for anyone. However, a small business owner needs to consider whether the business can support their family after their death. If you are the key person that operates your business, the company may not generate enough income without you to support your family. 

Purchasing additional life insurance coverage can provide your family with immediate resources to pay living expenses after your death. The insurance proceeds can bridge the gap between your death and finalizing the business transfer. 

Contact Our California Estate Planning Attorney for a Free Consultation 

Estate planning is important for everyone, but especially for small business owners. An estate plan ensures that the business you created can continue to provide for your loved ones after your death. Protecting your business assets preserves your legacy for future generations. Contact our office to schedule a consultation with an experienced California estate planning attorney.

Under California law, domestic partners have all of the same rights as a married couple.  However, if you and your partner are not married, and not registered as domestic partners, you will need to be especially careful that your estate plan is in place to carry out your wishes when you die, or if you become incapacitated.  

A California estate planning attorney can explain how to create an estate plan suited for unmarried partners and draft the documents you need.   

Unless you are married to your partner, or registered as a domestic partner with the State of California, you may find that California law considers you and your unmarried partner to be “legal strangers” for purposes of estate administration. No matter how deeply you care for your partner, if you and your partner are not married, and not registered as domestic partners with the State of California, the only way your unmarried partner can receive any of your assets or other protections is if you make that happen. The law will not do that for you.

Wills and Trusts for Unmarried Partners

If you do not have a will or living trust, your unmarried partner will not receive anything from your estate when you die. People who do not leave a will or trust behind die intestate, which means that California intestacy laws will control how their assets get distributed. An intestate estate goes only to your blood relatives and surviving spouse or domestic partner if you have one.

You will need to create a will or trust for your unmarried partner to inherit from you. Either one can work for this purpose. One consideration in choosing between a will and a trust is privacy. A will must be filed with the probate court after you die, so it becomes a public record. A trust does not usually get filed in court, so you have greater privacy concerning the distribution of your assets.

An important thing to note is that if you were married to someone other than your current partner and you separated from your legal spouse but did not finalize the divorce, your legal spouse will have a claim on your estate whether you die intestate or with a will or trust. You should discuss this issue with your estate planning lawyer if you are in this situation.

Powers of Attorney for Financial Matters and Healthcare Decisions

You will want to make a Durable Power of Attorney that gives your unmarried partner the legal authority to manage your financial matters if you become incapacitated if that is the person you select for that function. Otherwise, your partner would have to get a court order, which your family might contest.

You can name your unmarried partner as your medical decision-maker if you become unable to do so for yourself. You will want to include a medical records authorization and written instructions for your healthcare providers that allow your partner free access to visit you in the hospital or long-term care facility. Some families have blocked a partner from seeing the other partner in the hospital because the relative did not approve of the person’s lifestyle choices.

Beneficiary Designations

It can be useful to make a list of all your financial accounts and review the beneficiary designations. In a committed relationship, you might want to make your unmarried partner the beneficiary of your life insurance and retirement accounts. Bank and investment accounts can transfer automatically upon your passing by adding transfer on death (TOD) or pay on death (POD) instructions to the accounts. Your financial institution can provide the forms for this account change. A California estate planning attorney can craft an estate plan for unmarried partners to help you meet your goals and needs. Get in touch with our office today for a free consultation.

For many of us, it may be even more difficult to think about the loss of a spouse or partner than it is to face our own mortality. 

However, you still need to do estate planning for surviving your spouse or partner, because one of you will most likely predecease the other. If you are the survivor, your loved one would want you to be safe and secure when he or she is not there with you.

While the details will depend on the facts of your unique situation, there are some overarching concepts that may apply to most couples. A California estate planning attorney can guide you through an evaluation of the legal protections available and draft your documents for you. 

Consider the Children

If you have minor children, you need to prepare for the worst-case scenario and ensure they will be cared for if you and your spouse or partner meet an untimely end. 

The two primary concerns for your children are deciding (1) who will manage their money when you’re gone, and (2) who will take care of the children on a daily basis. 

For their money, you can set up a trust and name a trustee to manage the assets until the children become adults. The more challenging question may be deciding who will be the guardian of the children if you both die. This choice could change over the years because people and situations evolve.

Know Your Spouse or Partner’s Wishes About End-of-Life Medical Care and Funeral Arrangements

Anyone who has gone through the experience of having to make end-of-life choices for a close relative understands the soul-searching and angst that may accompany those decisions. It is much easier to navigate those emotion-filled times if you already had these conversations and made these decisions before the unthinkable happens. 

When you know the answers, you can take comfort in knowing that you are merely carrying out your spouse or partner’s wishes rather than having to figure out or decide what should happen. Also, you should find out what kind of funeral and burial arrangements your spouse or partner would like. The answers might surprise you.

Review Your Assets with Your Estate Planning Lawyer

Along with discussing the above issues, you and your spouse or partner should sit down with your estate planning attorney and go over your list of all assets that you each own.  One of the best gifts that you can give to your spouse or partner when you die is to have all of your assets in order ahead of time.   

You will want to make sure that your retirement accounts, investments, real property, vehicles, and other assets have up-to-date beneficiary designations and a clean title that does not conflict with your estate planning instruments. You don’t want to leave a mess to clean up after you die for the administrator of your trust or estate. 

Don’t forget about any life insurance policies.  You’ll want to be sure that the named beneficiaries are consistent with your wishes, and with any estate planning documents that may mention those policies.  Finally, be sure to have your California estate planning attorney draft all the documents to protect you and your spouse or partner, as well as your other loved ones. A durable power of attorney, living trust, medical power of attorney, and medical records authorization are a few of the documents that can provide the legal framework for the family if you or your spouse or partner become incapacitated or predecease the other. For legal assistance with your estate planning contact our office today.

Con artists love to go after seniors to try to trick them out of their hard-earned money. Sometimes the scammers are total strangers from somewhere else in the world, and sometimes the thieves are close to home. Relatives, neighbors, caregivers, and trusted people like spiritual advisors may dupe older Americans out of the money they need to survive.                                                       

There are ways to protect yourself from these crooks. A California estate planning attorney can explain how to avoid being a target and can provide guidance on setting up ways to keep your money out of the hands of con artists.

Educate Yourself on the Current Common Scams

When you know what to look for, it is easier to spot fraud before falling victim to it. Here are some of the top scams that target seniors:

• Getting and misusing your Medicare identification number.
• Selling counterfeit prescription drugs to seniors that could be useless or even dangerous.
• Funeral scams like selling caskets to the surviving spouse of someone who will be cremated. On a related note, con artists read the obituaries and demand the grieving survivors pay a nonexistent debt.
• Selling fake anti-aging products and claiming they are as good as legitimate products, like Botox.
• Calling seniors on the phone and tricking them into sending money after a natural disaster by pretending to be a charity, or claiming that a relative is stranded and injured in another country. 
• Sending emails to seniors to get their bank account and credit card information or to download fake antivirus software that gives the thieves access to the older adult’s computer and personal information.
• Con artists who pretend to be financial advisors to get access to the senior’s accounts and then disappear with the money.

These are just a few examples of the many schemes people use to prey upon seniors and try to steal their life savings.

Do Not Be Afraid or Embarrassed About Reaching Out for Help or Advice

Many people suspect that something might be fishy, but they are embarrassed to ask anyone about their concerns, particularly if the senior already got scammed out of some money. Sometimes, seniors get ripped off by their own family members who threaten them with getting thrown out into the street if they tell anyone.

Criminals prey on these emotions, fear, and embarrassment, to get away with stealing money from older adults. Your local law enforcement is a great resource for help if you suspect that something is too good to be true or if you are having to hand over your money to others against your will.

Have a “Buddy” System

What might sound legitimate to one person could set off alarm bells for another. Set up a buddy system with a trusted friend or relative who will look over your shoulder in exchange for you doing the same for them.

Stay Active and Involved in Your Community

When someone becomes isolated from their community, they are a natural target of fraudsters. Staying active and involved in your community gives you a valuable resource to evaluate would-be con artists because you can ask others about the reputation of those who might try to scam you. A California estate planning attorney can answer your questions and help you set up legal protections for your assets. Get in touch with our office today; we offer a free consultation.