elderly couple estate planning

Signs of Undue Influence in Elderly Estate Planning

It sounds like the plot of a movie – someone tricks, pressures, or forces an older adult to change their will or trust, cutting out everyone else from the inheritance and leaving all or most of the assets to the person who exerted undue influence. California law is intended to protect people from this financial abuse, but it still happens frequently. 

Our state statutes cannot always prevent undue influence from happening, but the law gives people damaged by the improper conduct a potential remedy to pursue. A California elder law attorney can help you evaluate the facts of your situation and advise you as to whether you might have grounds to contest a trust or will for undue influence.

Signs of Undue Influence in Elderly Estate Planning

Sometimes, your instincts tell you that something is wrong, but it can be challenging to put into words why you feel that way. Here are four factors you might want to think about if you are considering talking to a lawyer:

  1. Whether the ultimate outcome was unfair. Let’s say that your brother was estranged from your father decades ago. He came back into your father’s life during your dad’s final illness. They resolved their differences, and your dad changed his will to leave everything to you and your brother equally. Because the outcome looks equitable, the court would be less likely to declare the new will invalid. If the new will cuts you out and leaves everything to your brother, however, the court may be much more inclined to find undue influence.
  2. Whether the victim was vulnerable. Advanced age, loneliness, dependence, illness, disability, and other issues can make a person vulnerable. If your dad moved in with your brother before he changed his will and your brother provided needed financial help and other care to your dad, your dad’s illness and dependence could be indications of vulnerability.
  3. Whether the influencer acted in bad faith to control the older person. If your brother limited your dad’s social contacts, used emotional blackmail, or delayed providing your dad with his medications or other medical attention until he signed a new will or trust, those tactics would be signs of undue influence.
  4. Whether the influencer had some apparent authority that the victim relied on or trusted. For example, some people will give more weight to what a doctor, clergy member, or male relative tells them than what other people say. If someone with apparent authority over your elderly relative tries to “cash in” on that relationship, to the detriment of the older person’s other natural heirs, that fact could indicate undue influence. 

In a nutshell, undue influence is unethical behavior that takes away the victim’s free will and achieves an unfair result. When this happens, a court can take action to void the will, codicil, or trust agreement. 

People with the most contact with the victim, like caregivers, relatives, and friends, are most often accused of undue influence. Sometimes the claims are true, but not always. Instead, sometimes a close relative who ignored and neglected an older adult demands to get an equal share with those who provided years of hands-on care for the individual. Inheritance shares do not have to be equal to be fair.  They just have to faithfully reflect the elder’s wishes.

Contact our office today. Our California elder law attorney can provide guidance, whether you think someone unduly influenced your loved one or someone accuses you of perpetrating undue influence. 

couple and attorney discussing estate plan

What Documents Should be Included in Your Estate Planning?

Some people think they do not need an estate plan unless they are married, own a home, have children, and own significant assets.  But that is not always the case. A young, single person could have a devastating accident or illness. Without a power of attorney for healthcare decisions, the family might have to go to court for an order allowing them to make medical decisions while the person is incapacitated. This process could waste precious weeks or months, cause a rift in the family, and cost thousands of dollars.  Alternatively, a person who dies without a will or trust may force his survivors to go to court after he’s gone, to sort out his estate over a year or more, while a well-crafted estate plan might have avoided court altogether. 

A California estate planning attorney can evaluate your situation and explain which documents you need.

The Benefits of a Will or Living Trust

Wills and living trusts may each tell your survivors what you want to be done with your assets and who will handle the administrative steps after you’re gone. The person you select to be the executor of your will or the trustee of your trust can hire a professional, like a lawyer, to do the actual work while the executor or trustee supervises that work.

A living trust has many advantages over a will.  A will has to go through court, once you’ve died, so there is less privacy about the terms of the will. A trust generally does not have to go through the probate court, so there is more privacy. If you decide to execute a living trust, make sure that you retitle all of the property into the name of the trust if you want those things to pass by means of the trust. 

Trusts give more options and greater flexibility than wills. For example:

  • A special needs trust can provide assets for the benefit of a loved one with a disability without making the person ineligible for government assistance programs.
  • A Medicaid trust can help an individual qualify for Medicaid benefits to help pay nursing home bills without leaving the spouse who still lives at home destitute.
  • A spendthrift trust lets you provide assets with protections to a loved one who is still young and attending school, or who might otherwise spend all the money quickly.

These are just a few examples of the many types of living trusts that could be a part of your estate plan.

A General Power of Attorney 

Although the name sounds intimidating, a power of attorney merely gives someone else permission to act on your behalf under certain circumstances. A power of attorney (POA) does not give someone the legal right to take over against your will or to steal your assets. 

Many POAs are general in nature and open-ended in duration. For example, you might name someone to pay your bills and manage your investment accounts if you become unable to do so for yourself. It is essential to make a general power of attorney “durable.” In other words, the POA is still valid if you become incapacitated.

A power of attorney might also be specific, like authorizing someone to sign papers for you at a real estate closing that you cannot attend. This type of POA is usually limited in time as well as scope; in other words, it will expire shortly after the real estate closing date.

All POAs are revocable as long as you have the legal capacity to create a POA. If you change your mind about the person you named as your “attorney in fact,” you can revoke the POA and create a new one naming someone else.

A Medical Power of Attorney or Advance Health Care Directive

A medical power of attorney, or Advance Health Care Directive (“AHCD”), as it is called in California, lets you decide who will make medical decisions on your behalf if you become incapacitated temporarily or long-term. You can revoke an AHCD at any time before you become incapacitated. As stated earlier, this document spares your loved ones from having to get a legal guardian appointed who can make healthcare decisions for you.

Depending on your situation and goals, you might need other documents in your estate plan in addition to the ones mentioned in this article. Contact our office today. Our California estate planning attorneys can recommend and prepare the documents that will best serve your needs.

man looking over his will

How Long Does Probate Take in California?

On average, probate in California takes about 12 to 18 months. It can get done in as little as nine months, but that is unusual. If there are any problems, it can take up to two years or longer.

There are ways to get assets to your loved ones faster. A California probate attorney can explain your options and help you set up an estate plan to protect your beneficiaries.

The Stages of the Probate Process

When everything goes smoothly and there are no snags, like a will contest, a dispute about ownership of assets, or improper creditor claims, the probate process in California typically has seven phases. If there are issues, additional steps might be necessary.

  1. Find the will. Sometimes, it is merely a matter of calling the lawyer who prepared the will and letting them know about the death. The lawyer pulls the document out of the client’s file and begins the administration process. If the family does not know who wrote the will, they might have to dig through drawers and boxes, searching for the paperwork. A will should not be stored in a safe deposit box because it can take a court order to open the box. 
  1. Get the death certificate. Every bank, brokerage firm, life insurance company, and other relevant organization will need an original death certificate. 
  1. File a Petition for Probate with the probate court. This filing typically includes a copy of the will, a death certificate, and the Petition for Probate. If you found a will, the court can appoint the person the decedent named in the will to serve as the executor of the will. If no one found a will, the judge can appoint someone to serve as the administrator of the intestate (no will) estate. 
  1. Locate the assets. This phase can take many months, even into the next year, to wait for annual statements in the mail from companies where the decedent had accounts. Even the most organized person might not keep information about every single asset in one place. Some items will need professional appraisals to determine their current value.
  1. Pay the decedent’s creditors and taxes. The executor has to evaluate the decedent’s bills, including from the final illness, determine which ones are valid, and pay them. The executor has to file the decedent’s final income tax return and the estate tax return.
  1. Distribute assets to the heirs and beneficiaries. After dealing with all of the liabilities of the decedent’s estate, the executor or administrator can distribute the remaining assets to the legal heirs and beneficiaries. If there was a will, it will dictate who receives which items, within the bounds of California law on legal heirs. If there was no will, the assets will pass according to the laws of intestacy.
  1. Wrap up the estate. An accounting will go to the probate court for approval. After all the tasks get performed and approved, the court will close the probate file.

Contact our office today. We understand that these steps can feel overwhelming, particularly when you are grieving over the loss of your loved one. You do not have to handle these things on your own. Many people hire a California probate attorney to administer the estate for them. Also, getting a living trust can take many assets out of the probate process. 

Young family sitting together.

Estate Planning Tips for Parents of Minor Children

What will happen to your children if you become incapacitated or die today?  Who will take care of them? How will they be provided for? These aren’t pleasant thoughts to contemplate, but they are important to consider.  Should something happen to you, the last thing you want is your children’s future to be decided by the courts.  

Estate Planning Tips for Parents with Minor Children

California estate planning attorneys are committed to helping families protect their children through proactive, comprehensive estate planning. While each family’s unique needs will guide their estate plan, these five estate planning tips for parents of minor children are a good starting point:

1. Decide on a Guardian

You must decide who you want to raise your children if you aren’t around to do so.  Naming a guardian for your children will safeguard their future well-being and ensure that they will remain with someone of your choosing. If you do not name a guardian, the courts may need to appoint one for them or place them in foster care. 

When choosing someone to act as your child’s guardian, ask yourself these questions:

  • Do they live close by, or will they relocate to your children’s community?
  • Do they have stable personal relationships?
  • Are they financially responsible and secure?
  • Will they provide the lifestyle and religious upbringing you would prefer?
  • Are they willing to assume the responsibility of raising your children?

2. Update Beneficiaries on Retirement Accounts

Review your retirement and investment accounts and update your beneficiaries. Ask your estate planning attorney about naming beneficiaries and how to ensure that benefits are distributed according to your wishes. 

3. Purchase Life Insurance

Life insurance offers peace of mind that your children will have the funds needed to live comfortably and pursue their goals in the event of your death. 

An estate planning attorney may advise you regarding policy types and amounts suitable to your family’s needs. Factor your estate debts and your children’s short-term and long-term needs when purchasing life insurance policies, including:

  • Special medical needs
  • Care-taking support
  • Standard of living
  • Sports and recreation
  • College expenses

4. Advance Health Care Directives

Many people think of estate planning exclusively in terms of finances. However, it’s equally important to exeu an advance health care directive. 

A medical directive a will define your preferences regarding medical treatment and decision-makers. A financial power of attorney designates who can access and manage your finances when you can’t. 

These documents are essential to any comprehensive estate plan, establishing clarity and direction for your loved ones in the event you are incapacitated or deceased.

5. Establish a Will and Trust

Decisions regarding your children’s care and the management of your estate need to be recorded in a legal format. A skilled estate planning attorney will prepare all necessary documents and ensure they are legally sound if challenged. 

Trusts are particularly valuable as they allow for specific instructions regarding the trustee’s estate. For instance, many parents instruct that their estate be disbursed incrementally, as a child ages and matures, and for specific purposes, such as funding college or entrepreneurial pursuits. 

Trusts also protect against costly probate and unnecessary court intervention, saving thousands of dollars upon estate distribution.

Protect your Family with the Help of a California Estate Planning Attorney 

Families with young children should be proactive in their approach to the future.  Anything could happen, which might tragically leave minor children at risk of being orphaned. Don’t risk their future to chance.  

Contact our office today and plan ahead with the help of an experienced California estate planning attorney. 

Special needs child with father.

Estate Planning for Parents of Special Needs Children

Many children with special needs rely on public funding for their support, like Medicaid for health insurance and Supplemental Security Income (SSI) for monthly income. If your estate plan is not set up correctly, your child could lose eligibility for these programs when he or she needs them the most.  Whether your child with special needs is a minor or an adult, you will need to address unique issues when making your estate plan. 

A California estate planning attorney can help you avoid pitfalls when creating your estate plan. Parents with special needs children typically have these three goals when planning for the future of their children:

  • To avoid outcomes that could jeopardize your child’s eligibility for government benefits programs. For example, the assets or income you provide for your child need to be in a category that the government does not consider as “countable” assets for purposes of qualifying for Medicaid, SSI, and other benefits.
  • To make assets available to help your child if the public funding programs get canceled or reduced.
  • To plan for the management of your child’s money. You need to select someone who will manage your child’s financial matters if you become incapacitated and after you pass away. Choosing the right person to assist with your child’s finances may be one of the most critical decisions you will have to make for your child’s future well-being. 

Special Needs Trusts

A thoughtfully-drafted Special Needs Trust can help provide disabled beneficiaries with the support they require, without causing them to forfeit their public benefits during their lifetime.  After the beneficiary of a Special Needs Trust passes away, the government may  have the right to claim the assets that remain in the trust as reimbursement for benefits and services received during his or her lifetime. But any funds remaining after that reimbursement can go to the other beneficiaries you name in the trust.Special Needs Trusts can be tricky to set up. If not done correctly, your child will not receive the financial security you wanted him or her to have. Contact us today for a consultation. Our California estate planning attorneys can draft the trust documents and guide you through the process of transferring assets to the trust.

Older man looking over his last will and testament

What Is Intestate Succession? Why You Need to Care

If a California resident dies without a valid will or trust, then California law will control who gets their assets. Without an effective estate plan, your assets may pass to heirs you may not prefer, or even to heirs you’ve never met. An estate plan is the only way to ensure that the people you love will receive the things you want them to have. California intestate succession lawyers can help you execute the documents to protect your loved ones. 

When a person dies without a will or trust, all of their assets may pass through a process called intestate succession. The state will apply a one-size-fits-all formula, regardless of how well you got along with any of the individuals named as your heirs under the law. People you cared about dearly might get cut out entirely. Below is an overview of intestate succession and why you need to care about whether your estate passes to your loved ones through intestacy.

The State of California and Intestacy 

If you die without a will or trust, then your assets may benefit the state more than they would if you did not die intestate. Most trusts, for example, do not have to go through probate court, and so trust beneficiaries can often avoid probate fees and other court costs.

In some cases, the state could even receive 100% of your assets, if you die without a will or trust. If you do not have any natural heirs closely related to you, then everything you own could “escheat” to the state after your death – meaning that the state simply takes over the assets. 

What “Surviving” Means in California for Purposes of Intestacy 

You might think that someone survives you if they are still alive when you die. Unfortunately, that situation is not always the case. The intestacy statutes in California say that someone must live at least 120 hours (five days) longer than you to inherit from you. 

Let’s say that you and a close relative were in a car accident, and you did not have a will or trust. If you died at the scene of the crash and your loved one died three or four days later, the law says that your relative did not survive you. None of your assets will go to that person’s estate or be distributed to their heirs. 

The Pecking Order of Natural Heirs in Intestate Succession

California’s intestacy rules are complex. In general, the assets of a married person who dies without a will or trust will get distributed as follows:

  • The surviving spouse will get the decedent’s 1/2 share of the couple’s community property.
  • The surviving spouse will also receive all of the decedent’s separate property if the decedent did not have any surviving children, parents, siblings, or children of a deceased sibling. 
  • Depending on the facts of the situation, the surviving spouse could receive only 1/2 or 1/3 of the decedent’s separate property. 

These are just a few of the rules California applies to intestate estates. Contact a California elder law attorney to learn more. Our California estate planning lawyers could walk you through the intestacy laws and answer your questions about who would inherit from you if you die without a will or trust.  But more importantly, our attorneys can help you avoid intestacy altogether, to ensure that your wishes are faithfully carried out upon your death. 

Why You Shouldn’t Wait for the Next Pandemic to Start Your Estate Plan

For many of us, the coronavirus pandemic has generated not only fear, but a call to action. We’ve drastically changed how we live, travel, work, shop, keep in touch with our friends and loved ones, and even how we raise our children. We’ve quickly learned to adapt our behavior to help protect ourselves and our families. 

What too many people have forgotten, in the urgency of the moment, is to attend to the estate planning they have procrastinated about for years.

We’re all a bit like the Arkansas Traveler of the famous folk song, who couldn’t fix his roof when it rained and didn’t see any need to fix it when it was sunny.  We may put off our estate planning when we’re busy with our normal routine. But now, in the midst of a crisis, we feel overwhelmed, with our focus on more immediate needs.  As in the folk song, the roof has still not been repaired; an estate plan hasn’t been created to deal with life’s unexpected blessings or calamities. There’s got to be a better way. 

Take Measures to Control the Uncontrollable 

COVID-19 has turned our world upside down.  We still see mounting numbers of the sick and dead, and watch as small businesses suffer during the protective shelter in place provisions. 

We can’t control a natural calamity such a pandemic. But each of us can do our part to protect our families and friends, with measures like  social distancing and masks. Similarly, while we can’t predict or prevent all of the events that will impact our lives, we can prepare for eventualities. 

Preparing for the future is where a skilled estate planning attorney is invaluable. An estate planning attorney may help you to do any of the following:

  • Ensure that your assets pass smoothly to your chosen beneficiaries
  • Avoid the costs and delays of probate proceedings
  • Protect your assets from creditors and unnecessary taxes by establishing trusts
  • Name guardians for your children 
  • Leave money to charities or educational institutions that are meaningful to you
  • Designate someone to manage your finances if you are incapacitated
  • Designate someone to make medical decisions for you if you are unable to do so
  • Decide what medical steps you want taken to keep you alive if the worst occurs
  • Protect disabled loved ones from losing their benefits if they inherit assets from you
  • Provide that minors and others may receive their shares in trust, rather than outright, to ensure that the funds are used responsibly for their health, education, and support, and not dissipated through misfortune, such as a medical emergency, poor financial planning, substance abuse and addiction, extravagant spending, predatory lenders, or divorce

Not every one of the items on this list applies to everyone. An experienced estate planning attorney will know which questions to ask to better understand and address your particular situation and address your unique needs.

Qualities a First-Rate Estate Planning Attorney Must Have 

There are certain non-negotiable traits you should look for in an estate planning attorney.  The attorney should possess the following qualities:

  • Be well-credentialed
  • Have a reputation for integrity, in-depth knowledge and empathy with clients and peers
  • Have the required skill set to draft and review all necessary documents
  • Be attentive and astute about which estate planning tools may work best 
  • Be a good communicator — able and willing to answer questions, clarify, and reassure
  • Be prepared to amend your documents as your life circumstances change
  • Ensure that your loved ones will avoid the delay and cost of probate 
  • Make certain that all of your documents are unambiguous and legally binding, to help avoid contentious family interactions when you pass away

Estate Planning Is a Strategic Approach 

It’s important to have a comfortable relationship with your estate planning attorney because you may be meeting with that individual on a regular basis to make certain that your paperwork is current. It may be necessary to amend documents, for example, as a result of: 

  1. The illness or death of a loved one
  2. The birth of a child
  3. Changes in your marital, health, or employment status
  4. The purchase or sale of real property 
  5. The establishment, purchase, or sale of a business 
  6. Changes in your marital, health, or employment status
  7. The development of special needs in a loved one
  8.  A significant inheritance 
  9.  Any other significant change in your financial or life circumstances 

At times like this, during the current pandemic, we become aware, sometimes as the result of a tragedy, that we may be missing the documents we should have available, such as:

  • Last Will and Testament (will)
  • Durable Power of Attorney
  • Advance Medical Directive
  • Revocable Living Trust
  • Living Will

Lacking these documents may seem worrisome now; it may be a catastrophe in the future.

Don’t Wait for the Next Pandemic To Contact a Strong Estate Planning Attorney

When the warning bell of COVID-19 sounded, some people did reach out to make urgent contact with a qualified estate planning lawyer. 

Amidst the chaos, clients and attorneys faced new challenges as they often could not meet face to face, or fully notarize the completed documents, due to shelter in place precautions. But many clients still felt the need to secure themselves and their families as best they could, when faced with an immediate crisis. 

If you were not one of those individuals, what are you waiting for? Take charge of your life today. Protect your family. Do what you can to prepare for the future now, instead of waiting for the next pandemic.

Should I Start Estate Planning In My Twenties?

Becoming an adult is a gradual process, often extending over decades. But during your twenties you will likely reach some of the most crucial benchmarks of adulthood.  These may include finishing your formal education, living independently for the first time, setting out on a long-term career path, finding a serious romantic partner, marrying, and even having a child.  All of these decisions have far-reaching consequences.

Starting the estate planning process early will help you visualize and prepare for your future, and help you discover and protect what you most value.  A well-drafted estate plan will also help ensure that your loved ones are taken care of when you’re gone.

Many people mistakenly believe that only middle-aged or elderly people need an estate plan.  But savvy young adults recognize that contacting a well-respected estate planning attorney at a young age is a measure of maturity. Doing so indicates that you are ready to take responsibility for protecting (as well as accumulating) assets, and for making provisions for your future and the futures of those you love.

In fact, one sign that you are actually a grownup is connecting with professionals in all areas of your life that require expertise (e.g. healthcare, insurance, finances, plumbing). Being an adult means being aware not only of your own strengths, but of the areas in which you need professional assistance.

Flexibility Is Key

Much of the future will not be what you expect. When you’re in your twenties, this may be difficult to grasp. It is a quantum leap to move from adolescence, when most people feel invincible, into adulthood, when you realize that mortality is inevitable.

As you plot the map to your future, you’ll need to acknowledge that your life may change directions. Your connection with your estate planning attorney will be ongoing, since you may have to make changes based on predictable or unexpected events.

This is why it is so important to choose your attorney carefully. You’ll need someone who will help you and your loved ones through blessings and misfortunes, whether to help you protect the accumulating assets of a thriving business or to preserve government benefits for a child’s special needs.

What Estate Planning Can Establish When You’re Young

Among the many benefits of planning your estate when you’re young are:

  • Protecting your assets as they accumulate
  • Providing for those who depend on you now or who will rely on you later
  • Protecting a loved one who is disabled
  • Planning ahead for a family member who is unable to handle money responsibly

Your own incapacity and death may seem hard to imagine.  But a sharp, compassionate estate planning attorney will help you plan thoughtfully for the risk that you may die young. Your attorney will do this by:

  • Having you designate beneficiaries for your assets, possibly including charities that have personal meaning for you
  • Discussing with you the steps you want taken to preserve your life if you are near death and unable to communicate your wishes
  • Having you name the person to take over your financial duties if your are incapacitated
  • Having you name the person you trust to be a guardian for your children and even your pets

Keep in mind that even the most perfectly crafted plan may change as your life unfolds. It is important to choose an estate planning lawyer that you trust and feel comfortable with to help guide you through some of life’s greatest challenges.  For example, you may encounter changes in your employment or income level, your marital or parental status, your place of residence, or your own business.  You may also face unexpected medical expenses, illness, injury, or the death of a loved one. An experienced estate planning attorney may be a valuable resource for you in any of these circumstances.

Why You Need a Well-Credentialed, Well-Respected Estate Planning Attorney

Whatever your age, choosing an estate planning attorney is a serious decision. Choosing wisely will make the task of planning your future much less confusing and much more efficient. This person will help you:

  • Draft, review and file or record the necessary documents
  • Create trusts to protect your assets from creditors and unnecessary taxation
  • Clarify your options, paying close attention to your particular needs
  • Be ready to modify and amend your documents as your life circumstances change
  • Ensure that your loved ones avoid the delay and cost of probate
  • Make certain that all of your paperwork is clear and legally binding to help avoid contentious family interactions when you pass away

A Smart Estate Planning Attorney Will Make Sure You Have All Necessary Documents

Once you’re an adult, the buck stops with you. As the recent pandemic has so graphically illustrated, none of us knows what will happen tomorrow,  So being an adult means preparing for both wonderful and frightening events. Your estate planning attorney will ensure that you have all the documents you need to see you through, which may include some or all of the following, depending on your circumstances:

Whatever life brings you, you will almost certainly be revisiting your estate plan in your thirties and forties, and hopefully right through your eighties and nineties. A properly constructed estate plan, if reviewed and maintained over the years, will serve you well throughout your life.

Man submitting a will contest.

Four Things You Should Know About Will and Trust Contests

Your loved one dies, and you discover that you’ve been cut out of the will or trust. You might still be reeling emotionally from the death in the family when you are shocked by this further bad news. The inheritance you have expected throughout your life is not going to happen. 

A California estate planning attorney can help you decide whether to contest the will or trust. There are many reasons to fight a will or trust. The most recent instrument might be a forgery, for example. Or the person who benefits under the document might have exerted undue influence to get your loved one to change the terms of a previous estate plan. If your loved one had Alzheimer’s disease or some other condition that affected their cognitive ability, they might not have had the legal capacity to make a new will or trust.

If you are thinking about contesting a will or trust, here are four things you need to know:

1. The Point of No Return

Things will never be the same in your family after you file a contest. Of course, relationships were already damaged if your loved one made a will or trust that cut out one or more natural heirs.

Expect that future holidays and family events will feel strained and uncomfortable for many years to come, whether you file a contest or not. Also, there can be collateral damage from this situation. For example, your relationships with your nieces and nephews, in-laws, and other people connected to those involved in the dispute could change forever.

2. Get Out Your Wallet

It may cost you plenty to fight a will or trust, and you may have to pay the legal fees and costs out of your pocket, upfront. Many attorneys will only represent you if you pay their fees by the hour, regardless of the outcome of the case. In appropriate cases, however, a few trust and estate litigation firms, including Loew Law Group, take on a will or trust contest on a contingency basis, meaning that they agree to receive a percentage of whatever you win.  

Still, the out-of-pocket costs of filing fees, obtaining documents, paying court reporters, and retaining experts for trial may make a contest an expensive proposition for all involved. Loew Law Group is always happy to discuss potential payment options with clients.

Filing a lawsuit does not guarantee that you will win. When the dust settles, you might end up paying tens of thousands or even hundreds of thousands of dollars in legal fees and costs and still lose the contest.  

3. Choose Your Lawyer Wisely

Your results will depend in part on the lawyer you hire. Do your homework before you hire a lawyer to handle the contest. Ask for recommendations of lawyers from people you know and trust. When you get the names of several highly recommended trust and estate litigators, ask other professionals, like your accountant or other lawyers you’ve worked with in the past, about the candidates.  Make sure that the lawyer you select is a specialist in trust and estate litigation.

Just make sure that you do not take too long to make a decision. You have very little time to file a will or trust contest. If you miss the deadline, you can lose the right ever to dispute the terms of the will or trust.

4. Prepare to Adjust Your Expectations

Unlike on television or in the movies, you are unlikely to have a “knock-down drag-out” battle in court. 

The vast majority of lawsuits settle. The parties may prepare vigorously and thoroughly for trial, but the risks and costs, as well as the delay, create the incentive for all parties to seek resolution before trial.  Given the limited resources of courts, the judge will heavily encourage the parties to pursue mediation, asking a professional, usually a retired judge, to help them resolve the case.  

Whether you are still on the fence or have made a decision to contest the will or trust, a California estate planning attorney can guide you through this process. Contact us today for a consultation

Estate Planning for Women After a Divorce

As soon as the dust settles after divorce, women need to take care of other paperwork to avoid problems now and down the road. A California estate planning attorney can help you get ready for the next act of your life. Here are a few examples of ways to protect yourself and your loved ones.

Time to Update

Update your estate planning documents, particularly your will and living trust. You do not want to die intestate. Also, you do not want your former spouse to claim the right to serve as the executor of your will or the trustee of your living trust, or to receive assets from your old will or trust.

Have your estate planning lawyer read your divorce documents to see if your estate will have any obligations to your former spouse when you die, like a life insurance policy that will pay out to your ex-spouse. You will need to make sure that you buy and maintain the life insurance policy, update the beneficiary designation on the policy, and mention the life insurance policy in your estate plan, to avoid confusion or disputes down the road. 

Speaking of life insurance, make sure that you review the beneficiaries of all of your life insurance policies and retirement accounts. Update these designations to reflect the people you now want to receive these funds in the event of your death.  If you mistakenly leave your ex-spouse on the account as beneficiary, or fail to name a new beneficiary, your desired beneficiaries may be unable to receive your assets as you intend them to.

Try to think of all the possible payouts to others when you die, and make sure you change the named beneficiaries as necessary. For example, you might have an accidental death benefit through your automobile insurance or credit cards. You will want to update these beneficiary designations so that your former spouse does not receive these funds by default.

Update your durable power of attorney for financial matters and your power of attorney for medical decisions. If you are severely injured or become ill and cannot make medical or financial decisions for yourself, you do not want your former spouse handling those matters while you are incapacitated. 

Protect Your Children

You might consider setting up a trust for your minor children, naming someone else (not your former spouse) as the trustee until the children turn 18 or older. Also, if your children are under the age of 18, consider the issue of guardianship. 

Your former spouse is likely to get custody of the children if you do not survive until the children reach the majority age.  But you can still nominate someone else as a back-up guardian, just in case, and state the reason for those wishes in your will or trust.  For example, a parent with significant issues like addiction or economic problems might want an excuse to avoid the responsibility of parenting. The former spouse can say that letting the third party raise the children was done to honor your wishes.

Wrapping Up Details

If you receive a life estate in the family residence as part of the marital settlement, and the property reverts to your former spouse when you pass on, you need to make arrangements for what will happen to your personal property in the house at that time. You will also need to make sure that your will or living trust does not grant the house to someone else, if this gift contradicts the terms of the marital settlement. 

You might want to inform your close loved ones about the general terms of the divorce, to avoid surprises in the event of your death. Contact us today for a consultation. It is often worthwhile to meet with a California estate planning attorney to go over your divorce documents and create a strategy that protects you and your loved ones going forward.