Category: Estate Planning

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. 

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.

Estate planning is essential for all parents. However, single fathers face additional challenges and issues when preparing their estate, especially if their child’s other parent has passed away or cannot care for the child. Our California estate planning attorneys can help you address common estate planning issues for single parents. Creating an estate plan gives you the peace of mind of knowing that your child will be cared for if you become incapacitated or die suddenly.

Four Estate Planning Tips for Single Fathers

1.  Prepare a Will Immediately

A will allows you to choose a guardian for your child. The choice of a guardian is one of the most important aspects of estate planning as a single parent because the guardian will be responsible for caring for your child if you die or are incapacited. If you do not have a will and your child’s other parent cannot care for your child, the state decides who your child lives with after your death or upon your incapacity.

2.  Create a Trust for Your Child’s Inheritance

You should also consider executing a revocable living trust. A trust can provide that your child will receive his or her full inheritance only when reaching adulthood.  Until that time, a trustee will maintain the assets for the child’s benefit, and make distributions for the child’s health, education, maintenance and support.  A sophisticated trust may also provide that the child may receive shares of the inheritance outright in stages, such as in one-third shares when the child reaches the age of 25, 30, and 35.  There are a variety of trust agreements available. The type of trust you choose depends on your unique financial situation and your goals for protecting and managing your child’s inheritance.

3.  Include Incapacity Planning in Your Estate Plan

A comprehensive estate plan includes documents that protect your right to make health care decisions and financial decisions for yourself, even though you may become incapacitated. Your estate plan should include a financial power of attorney that gives someone you trust the power to make financial decisions for you if you are unable to do so.

Also, you should consider including medical directives that appoint an agent to make healthcare decisions for you if you are in an accident or become ill. Health care directives may also include instructions for end-of-life care or life-sustaining treatments, such as feeding tubes or respirators.

4.  Check Beneficiary Designations 

Some property passes directly to a beneficiary outside of your probate estate. In other words, the property is transferred upon your death to a specific person. Examples of assets that pass directly to a beneficiary upon your death may include retirement accounts, POD (pay-on-death) accounts, TOD (transfer-on-death) accounts, life insurance policies, annuities, and some investments. 

You will want to make sure that your beneficiary designations coordinate with your estate plan so that your child receives the property, if possible, without court interference. 

Contact Our California Estate Planning Attorneys for More Information 

It is hard to think about your child growing up without you. Contact us today for a consultation. Our California estate planning attorneys can help you protect your child’s inheritance and welfare in the event the unthinkable happens.

Congratulations – You took the first step and set up an estate plan. You’ve made the right decision to protect your family in case something happens to you.  But before you stick the papers in a drawer, you need to think about when you should plan on taking another look at the documents. 

Even the best estate plans can become less effective when certain things happen in life. You should talk with a California estate planning attorney when any of these 10 life events occur:

10 Events That Should Trigger an Estate Plan Review

1. You get married. 

Once you get married, or enter into a domestic partnership, your spouse may have rights of inheritance. Getting married can therefore make your previous will or trust invalid. Even if you have a prenuptial agreement that waives your inheritance rights from each other, you should update your will or trust to make sure it clearly states your intentions. If you do not make a new will or trust, your current documents may become unclear or ineffective.   Your executor or trustee may be forced to go to court unnecessarily, and the judge may rule that the documents apply differently from what you intended, or that they don’t apply at all. In short, family law and probate law principles may be inconsistent. But a well-drafted, updated estate plan can often resolve any inconsistencies.

2. You get divorced. 

You might assume that your work is done when your divorce case finally makes its way through court.  But you will need to take care of many more details after the smoke clears. One of these items is making a new estate plan. A divorce can invalidate your will or trust, and you do not want to die intestate or with a plan that doesn’t accurately carry out your wishes.  Again, a well-drafted, updated estate plan will reflect and acknowledge any changes that arise due to your divorce or separation from your spouse.

3. A child or grandchild is born or adopted.

One of the most common reasons that your surviving heirs may contest your will or trust is when your instruments do not mention all of the children or grandchildren. Your documents might include the term “afterborns,” to refer to children born or adopted after you signed your will or trust, or “issue,” to refer to any of your descendants.  But to help prevent problems with your estate or trust administration after you’re gone, it is best to update your papers to reflect your current family members. You should also review your documents if you or one of your beneficiaries adopt a stepchild.

4. Your child marries. 

Whether you love or hate the person your child marries, you might want to have a discussion with your estate planning lawyer when your child marries to ensure your estate plan remains effective as you intend. Depending on the circumstances, you might consult with your estate planning attorney to name your new in-law in your papers — either to make sure they receive a benefit, or, to the contrary,  or get advice on how to protect your child’s inheritance from a potential gold-digger.

5. Your child divorces. 

Many things change when your child divorces. Your relationship with your child’s former spouse is seldom the same as before. Your estate planning lawyer can advise you on any updates that might be appropriate in your situation.

6. Your spouse dies. 

When your spouse dies, you have a mountain of decisions to make and steps to take while dealing with your grief and loss. You should immediately seek out a estate and trust administration attorney to ensure you take all actions necessary or advisable to administer your spouse’s estate or trust.  When the initial crisis is behind you, it can be a good idea to review and update your will or trust. Most people leave a significant portion of their estate to their spouse. You will need to think about who will get the assets that your spouse would have received.

7. Your child, son or daughter-in-law, or grandchild dies. 

You likely mentioned your child, your child’s spouse, and your grandchildren in your will or trust. If any of these people predecease you, it is appropriate to update your documents so that there will be clarity about the distribution of your assets.

8. You get a windfall. 

When you initially set up your estate plan, you of course considered your financial condition at that time. If you suddenly receive a windfall, like a significant inheritance, a winning lottery ticket, or proceeds from a personal injury lawsuit, you might want to reconsider your future beneficiaries. You may be able to help charities, for example, that you could not have given money to before.

9. You have a drastic change in your financial condition. 

While a windfall is a happy reason to update your will or trust, you should also take another look at your will or trust if you experience an economic downturn. You might not be able to make some of the bequests you included in your estate plan, and you may need to rethink some of those future gifts.

10. The passage of time. 

Sometimes your estate plan could use a few tweaks because of an accumulation of many small events instead of one substantial change of circumstance. State and federal laws change every year, potentially affecting issues like estate taxes and other taxes. Most legal and financial advisors recommend that you talk with an estate planning lawyer once every four or five years to keep your papers current.

Contact us today for a consultation. Our attorneys, including Certified Specialists in Estate Planning and Probate, can guide you through the estate planning process and provide suggestions for how to accomplish your goals and desires for your loved ones.

A revocable living trust is an essential estate planning tool. You can accomplish many things with a trust that you cannot do with a will. However, you can lose many of the advantages of a living trust if you do not complete the necessary steps. A California estate planning attorney can draft the trust document and give you advice on the rules that govern these instruments. 

Here are three things you should know about revocable living trusts.

What Do These Words Mean? Terminology Used in Trust Documents

Trust documents use terminology that you do not hear in everyday conversation. It can be a challenge to understand who the parties are without an explanation. Here are some of the common legal words used in trusts:

• Settlor. The settlor (sometimes called a grantor or trustor) is the person who sets up and funds the trust. If you set up a living trust to distribute your assets, you are the settlor.
• Trustee. The trustee is the person who manages the assets of the trust. Often, the settlor is the initial trustee during his or her lifetime. A successor trustee steps in when the settlor dies or becomes incapacitated, or sometimes if the settlor does not wish to serve as an initial trustee at all.   The settlor may name another person to serve as initial or successor trustee, such as a friend or relative, or a professional, like an accountant, financial planner, lawyer, or private professional fiduciary. For large trusts, the settlor may name a professional entity, such as the trust department of a bank, to serve as the initial trustee or the successor trustee.
• Beneficiary. The person who receives the benefit of the trust assets is the beneficiary. For example, while you’re living, you may be the beneficiary of your living trust.  If your trust will one day distribute your assets to your child, your child is a successor beneficiary of your trust.

When Can You Change Your Revocable Living Trust, and When Can it Not Be Changed?

You can change the terms of your revocable living trust or revoke it entirely at any time before you die unless you become incapacitated. A well-drafted trust should specify when you are incapable of managing or changing your trust, such as when two physicians sign letters affirming that you lack the capacity to manage your financial affairs. You are generally incapable of serving as trustee or of changing your trust if you cannot make decisions for yourself or communicate your decisions to others. 

Incapacity is often permanent, but it can also be temporary.  For example, you might suffer from a serious physical injury or illness, or from mental illness or substance abuse issues, that cause you to be temporarily unable to handle your affairs. if you regain the ability to make decisions for yourself and communicate them to others then you may have legal capacity once again.  A well-drafted trust can ensure that your affairs are attended to for as long as you remain incapacitated.

What Are Some Reasons Why People Set Up Revocable Living Trusts?

A revocable living trust provides you with many more options for distribution than a will. With a will, the assets typically get distributed within a year or two of your death, and the estate gets fully distributed and closed at that time. With a trust, you have more flexibility, and you can spread out the distribution of assets over many years.  For example, instead of receiving an inheritance all at once, your child may receive a share of the assets when he or she turns 25, 30, and 35. 

You can provide for other unique circumstances with a trust as well.  For example, if you have a relative with special needs, or a beneficiary who does not handle money well, or a beneficiary who is planning to qualify for Medicaid for nursing home expenses, the trustee can retain discretion to limit the distributions where appropriate. Some trusts can also help you reduce the taxes on your income and assets. 

Finally, unlike a will, a trust can often be administered without the need to go through the probate court. As a result, a trust can provide more privacy. A trust may also allow the trustee to distribute assets more quickly to beneficiaries and with fewer administrative costs than a will that goes through the probate process.

These are only a few examples of the many advantages of living trusts. Talk with our California estate planning attorneys today. Our lawyers can explain additional aspects of these important legal documents and work with you to draft a living trust that meets your needs and goals.

Many families struggle with the decision about whether to obtain conservatorship of an elderly or incapacitated family member. You can make some decisions for your loved one without involving the courts. But there are other matters for which you will need legal authority to make decisions for another adult. A California estate planning attorney can help you petition for conservatorship of a family member so that you can care for and protect your family member.  

Our conservatorship litigation attorneys can also defend you or your family members if you believe that a proposed conservatorship is unnecessary, or is being sought for an improper purpose. 

What Is a Conservatorship?

A probate conservatorship in California is a court proceeding in which the court appoints a party to care for or oversee the care of an incapacitated or vulnerable adult. The person appointed by the court is a conservator, while the person conserved is known as the conservatee. There are two types of conservatorships in California. 

A conservator of the person makes decisions regarding the person’s physical care, medical treatment, and daily living arrangements. A conservator of the estate manages the person’s finances and property. One person can serve as both a conservator of the person and a conservator of the estate. However, they are separate roles and the court must approve each role separately even if the same person serves in both roles.

How Do I Seek Appointment of a Conservator?

If you believe that a family member is unable to care for himself or herself because of advanced age or physical or mental incapacity, or if you believe that the person is being subjected to undue influence, you may file a petition with the probate court seeking to become a conservator or to appoint a third-party conservator. The probate court assigns an investigator to interview the person who is the subject of the petition for conservatorship – the proposed conservatee. The court also generally appoints a separate attorney to represent the incapacitated person’s interests during the proceeding.

The probate investigator may also interview other witnesses and gather information regarding the person’s physical and mental health. The investigator prepares a report that is filed with the court and shared with the attorneys in the case.

The court schedules a hearing to determine if a conservator is needed. The proposed conservatee can attend the hearing to present evidence of why he or she does not need a conservator. In many cases, someone petitioning for conservatorship has already obtained medical opinions from the person’s physicians stating why the person is unable to care for themselves or their finances.

If a judge determines that a conservatorship is necessary, the judge grants the petition and appoints a conservator. The court retains jurisdiction over the matter and supervises the conservatorship. The oversight is intended to protect the individual who needs care. 

If you are petitioning to be appointed as the conservator of the estate, the court may review your income and assets, and may require you to obtain a bond to ensure that you faithfully administer the conservatee’s assets.  The court may also find that you have conflicts of interest, or conflicts with the conservatee or other family members, that require the court to instead appoint a third party, such as a private fiduciary.

Petitioners should also be mindful that in many cases the proposed conservatee may strongly object to the conservatorship.  Or other family members may object on his or her behalf. The objecting parties are entitled to a trial before the court, which can be extremely expensive and time-consuming, and which can cause great stress and division within families.

 A California estate planning lawyer can help you assess whether pursuing a conservatorship is appropriate for your situation, and may also help defend you if a proposed conservatorship is unnecessary or is being sought for an improper purpose. 

Can I Avoid a Court-Appointed Conservator?

Because the court retains jurisdiction and proceedings are a matter of public record, many people want to avoid a court-appointed conservator. They also want to avoid the cost and time involved in a court case as well as retain control over who takes care of them if they should become incapacitated.

You can avoid a court-appointed conservator by including documents in your estate plan to specifically plan for incapacity. A Durable Power of Attorney gives an agent you choose the authority to act on your behalf regarding financial matters if you are unable to do so for yourself. Your revocable living trust provides the same powers to your successor trustee, to allow them to manage assets titled in your trust.  You can also grant someone the authority to make healthcare decisions and other decisions for you if you are unable to do so. However, you must execute all of these documents while you still have capacity. If you wait, you and your family may find yourselves facing conservatorship proceedings.

A California estate planning lawyer can help you develop an estate plan that includes documents that protect you if you become incapacitated. 

Contact a California Estate Planning Attorney for More Information on Conservatorship

 If you want to discuss estate plans or you need to file for conservatorship, contact our California estate planning attorneys today to discuss your specific situation.

Most people are generally familiar with the estate planning process, or with what an estate plan is. And many people understand that an estate plan, drafted with the assistance of an experienced California estate planning attorney, is the best way to avoid the probate process and ensure that their assets are passed on in accordance with their wishes. Unfortunately, however, there are several common misconceptions out there regarding the estate planning process. Below are some of the most common of these misconceptions.  

Common Estate Planning Misconceptions

Wills

Common misconceptions about wills include:

When a person has a will, no probate is required.  This often isn’t true. In fact, unless the testator’s probate estate has a gross value of less than $150,000, or the estate is left to his or her surviving spouse, the will is likely subject to probate.

Wills must be notarized. Wills don’t require notarization in California. In order to create a valid will in California, the testator should sign the will in the presence of two disinterested witnesses. There are other ways to create a valid will as well, but they also don’t involve notarization. 

A copy of a will is always valid. A copy of a will is not as effective as the original. In order for a copy of a will to be deemed valid, a court must be convinced that the original will is missing but not destroyed. If the court believes that the original will was destroyed, with the intention to revoke it, then the court won’t enforce the terms of the copy. 

If you have a will or are named as an executor or beneficiary in one, you should consult with an experienced estate planning attorney if you’re unsure how the will should operate, or whether a probate or other court order will be needed to administer the estate.

Powers of attorney 

Common misconceptions about powers of attorney include:

A power of attorney continues to be effective after the person who executed it dies. When the person named as the principal in a power of attorney dies, the power of attorney becomes completely ineffective. However, if a person named as an agent in a power of attorney dies, he or she may be replaced by another agent, if a backup agent is listed in the instrument.

All powers of attorney are legally valid once executed. A power of attorney signed by an individual who lacks capacity or who signs under coercion is invalid. Also, some powers of attorney “spring” into effect only when the individual is found to lack capacity.  Until then, the agent does not have the power to act.

If you have a power of attorney or are named as an agent in one, you should consult with an experienced estate planning attorney if you’re unsure how the power of attorney should operate, or whether the power of attorney is in effect or not.

Trusts

Common misconceptions about trusts include:

All trust assets go to the surviving spouse if the couple established a revocable living trust together.  For certain trusts, this isn’t true. For example, joint living trusts established prior to 2002 are subject to complicated transfer rules that sometimes result in trust assets going to someone other than a spouse. Moreover, an individual may provide for other beneficiaries in his or her living trust, even if he or she is married.  

Once I execute my trust, all of my assets are automatically transferred to the trust.  At the time you execute your revocable living trust, you will normally specify whether some or all of your assets should be transferred into the trust. However, to complete the transfer, you must often execute additional documents, such as trust transfer deeds for real property, and you must also change the title in financial accounts that you wish to transfer into the trust. If a decedent dies before his or her assets are properly transferred into the trust, a probate may be needed, in some cases. In other cases, the trustee may petition the court for an order transferring the assets into the trust without a probate. 

If you have a revocable living trust or are named as a trustee or beneficiary in one, you should consult with an experienced estate planning attorney if you’re unsure how the trust should operate and who should receive trust assets outright or in trust.

You should also consult with an experienced estate planning attorney if you’re unsure whether the trust has been properly funded, or if you need help ensuring that the title in real property and financial accounts properly reflects that the assets are trust property. 

Let us walk you through the estate planning process   

The best way to clear up common estate planning misconceptions and avoid costly mistakes is to hire an experienced estate planning attorney to walk you through the process. At Loew Law Group, PLC, our California estate planning lawyers represent clients throughout San Mateo County, including Belmont, Burlingame, Foster City, Hillsborough, and Redwood City. When you entrust us with your estate planning needs, you can rest assured that we’ll provide you with a carefully crafted, detailed, and customized estate plan. If you would like to begin the estate planning process today, please contact us for a consultation.