Category: Estate Planning

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. 

Estate planning is important for everyone, but especially for single parents. Single parents face several estate planning issues that other individuals may not face. Protecting their children is usually the highest priority for single parents. A California estate-planning attorney can help single parents ensure their children have everything they need, even if the parent is no longer able to care for their child.

Five Estate Planning Tips for Single Parents

1.  A Single Parent Must Have A Will, and Generally A Trust As Well

A will is one of the most important estate planning documents for single parents. With a will, a single parent can name a guardian for their child after their death. This step becomes even more important if the child’s other parent is deceased, unfit, or unable to care for the child should the single parent pass away.  A trust is often essential for several reasons: (1) the trust beneficiaries won’t need to wait many months for a probate court proceeding to be completed; (2) to ensure that a trustee is in place to manage the assets immediately if the parent dies or is incapacitated while the children are still young; and (3) to enable the trustee to hold the children’s assets in trust for their health, education, maintenance and support until they become adults, instead of distributing the assets to them right away upon the parent’s death.

2.  Life Insurance

Single parents may want to invest in additional life insurance coverage to ensure their children have sufficient financial support after their death. An estate planning attorney can work with a single parent to develop a plan that can avoid tax burdens while protecting the life insurance proceeds for the use and benefit of their children for many years after their death.

3.  Incapacitation Planning

Single parents must also develop a plan should they become incapacitated. Incapacitation planning might include naming someone to make financial decisions and health care decisions should the single parent be unable to do so for any reason. A Durable Power of Attorney allows an agent to pay bills and pay bills for the children from the parent’s financial accounts. An estate planning lawyer can also discuss steps a single parent can take to ensure their child is cared for if they are unable to do so for any reason. A well-drafted trust instrument can also address many of these financial issues, if the parent becomes incapacitated.

4.   Beneficiary Designations

Some assets pass directly to beneficiaries instead of going through probate, such as life insurance, pensions, most retirement accounts, and some financial accounts. Because a minor child cannot receive these assets until they are of legal age, single parents need to work with an estate planning lawyer to determine how to protect these assets for their children. Using various trusts might be the best option for protecting the assets while ensuring the assets are available to support the children if necessary.

5.  Business Succession Planning

Single parents who are business owners need to engage in business succession planning as part of their estate plan. Business succession planning can ensure that a small business continues to operate after the single parent’s death for the benefit of the children. The business can continue to provide income for the children and be preserved for the children to inherit when they become of legal age to receive their inheritance. 

Business succession planning can also provide an efficient process for closing and liquidating the company after the single parent’s death. Depending on the circumstances, closing and liquidating the business might be in the best interest of the children. 

Contact a California Estate-Planning Attorney for More Information 

Estate planning for single parents can seem overwhelming. However, a California estate-planning attorney can make the process less stressful. Contact us today for a consultation. Our attorneys can guide you through the estate planning process and provide suggestions for how to accomplish your goals and desires for protecting your children in the event of your death or incapacitation. 

One reason many people do not develop an estate plan is that they believe the estate-planning process is difficult. They do not understand the process or what information they need for an estate plan. A California estate-planning attorney can simplify the estate-planning process by guiding you through each step, including preparing an estate-planning checklist for you.

Estate-Planning Checklist – Basic Estate Planning Documents

It can help to have a basic knowledge of the various types of estate-planning documents you might use when you develop your estate plan. Below is a checklist of estate-planning documents to discuss with an estate-planning lawyer.

• Last Will and Testament (“Will”) – the basic estate-planning document that directs how your assets are distributed after your death. You can also appoint a guardian for minor children in your Will.
• Powers of Attorney — allow you to appoint an agent to handle financial matters and health care decisions.
• Trust Agreements — create legal entities that can hold title to certain property. Trusts can avoid probate and provide tax advantages, and can also address specific concerns, such as legacy planning, retirement accounts, providing for children or individuals with special needs, providing for pets, and charitable giving.
• Beneficiary designations and jointly titled property — allow you to pass certain property directly to another person without going through probate.
• Medical directives — allow you to appoint an agent for health care, and to dictate end-of-life care and other health care decisions, even if you are unable to speak for yourself because of an illness or injury.

Depending on your estate-planning goals and needs, your attorney may advise you to utilize several of the above documents or additional estate-planning documents as part of your estate plan.

Estate-Planning Checklist for First Meeting with an Estate-Planning Attorney

Your estate-planning lawyer helps you identify your goals and needs regarding an estate plan. After discussing your preferences, your attorney works with you to gather information necessary to draft the documents you need to protect yourself, your property, and your heirs. However, it can be helpful to consider some key questions before meeting with your attorney. The answers to these questions often form the basis of your estate plan:

• What are your goals for an estate plan? Some common estate-planning goals include choosing your trustee and other agents, distributing your assets upon your death, avoiding probate, preparing for incapacity, avoiding estate taxes, and providing a legacy for family members.
• Do you want to include charitable giving in your estate plan?
• Is there a family member who has special needs?
• Who do you want to make financial and health care decisions for you if you become incapacitated?
• Who do you want to care for your minor children if you pass away or become incapacitated?
• Are there certain assets that you want to leave to specific individuals?
• Who do you want to receive your property after your death?
• Who do you want to handle your estate?
• Do you want to provide for the care and upkeep of your pets after your death?

The above list is not an exhaustive list of issues to address in an estate plan. However, working with an experienced estate-planning lawyer can help ensure that your estate plan covers all issues that are important to you.

Contact a California Estate-Planning Attorney to Discuss Your Estate Plan

You have someone to help you. Our California estate0planning attorneys provide step-by-step guidance throughout the estate-planning process to make the process as simple and stress-free as possible. Make sure that your loved ones have what they need after your death by working with your attorney to develop an estate plan that is right for you and your family. Talk with our California estate-planning attorneys today. 

Everyone needs an estate plan to protect themselves, their assets, and their loved ones. Without an estate plan, state laws and probate judges will make sensitive and important decisions for your loved one after your death. Our California estate planning attorneys typically recommend that individuals consider executing at least four basic estate-planning documents (and often five, if a trust is advisable) to protect themselves and their families.

Four Basic Estate-Planning Documents Everyone Needs

1.  Last Will and Testament and Revocable Living Trust

Regardless of your financial situation, marital status, and family situation, you need a will. A will is the basic estate planning tool that ensures your property is distributed to the individuals or organizations you choose after your death. Without a will, California’s intestate laws make these decisions for you. Also, a will allows parents to name a guardian for their minor children.  Keep in mind, however, that a will alone cannot keep your property out of probate court following your death. Nor does a will offer the best protection for you and your assets if you’re incapacitated. If you have substantial assets, including real property, you will likely need to execute a revocable living trust to protect your heirs from lengthy and costly probate proceedings and to ensure that minor beneficiaries, and other beneficiaries with special needs, inherit your assets in a trust to best protect their well-being.  Our California estate planning attorneys will help you analyze how you and your heirs may benefit from your execution of a revocable living trust to hold your assets.

2.  Financial Power of Attorney

A durable power of attorney appoints an individual to act as your agent regarding financial matters and is important to have if you are ever incapacitated or otherwise unable to access your own funds. Your agent has the authority to transact business in your name, including but not limited to selling/purchasing property, opening/closing financial accounts, making investment decisions, filing/settling lawsuits, and entering contracts. The “durable” section of a power of attorney states that the authority given to your agent is not affected by your incapacity.

3.  Beneficiary Designations

Some assets do not pass into your trust or probate estate. Examples of assets that are typically not probated or transferred into your trust include life insurance policies, most retirement accounts, and some investment or financial accounts. You need to designate a beneficiary who inherits the property directly upon your death. Failing to designate a beneficiary typically means your estate receives the asset to distribute according to your will or the state’s intestate laws, which may be contrary to your wishes and may have adverse tax effects.

4.  Advance Health Care Directive or Medical Power of Attorney 

An advance health care directive or medical power of attorney gives an individual the authority to make medical decisions for you if you are unable to do so yourself. A medical power of attorney prevents the court from making health care decisions for you or choosing someone whom you may not agree with to make these decisions for you.

These documents, sometimes called a “living will,”  also deal specifically with end-of-life and life-sustaining medical procedures and treatment. For instance, if you do not wish to have a feeding tube inserted if you are terminally ill, you can direct your doctors not to do so in a living will or medical directive. You can also name someone to carry out your wishes regarding life-sustaining care. These documents can remove a substantial amount of stress off your family’s shoulders as they try to decide whether to “pull the plug.” If you’ve executed a health care directive, they do not need to guess whether you want life-sustaining medical care or not.

Contact a California Estate Planning Attorney for Assistance

If you have questions about an estate plan or about any of these estate-planning documents, talk with our California estate planning attorneys today. Our attorneys can give you advice and guidance based on your unique situation, needs, and goals.

You may not be ready for any more planning after planning a rehearsal dinner, wedding, and honeymoon. There is so much planning that goes into a wedding that it can be a bit overwhelming at times, while still being exciting and joyful. However, there is one important matter that many newlyweds overlook – estate planning. 

Planning for your death or incapacitation is not typically a topic that comes up as you are preparing to get married, but it is something that newlyweds need to address. If possible, couples should discuss estate planning topics before the wedding to ensure they are taking all necessary steps to protect their future spouse. A California estate planning attorney can help couples address financial and estate matters before or after the wedding.

Five Estate Planning Steps Newlyweds Should Take As Soon As Possible

1.  Discuss Matters Related to Property and Healthcare

If newlyweds have not discussed their preferences regarding end-of-life medical care, charitable giving, heirs, and other matters related to healthcare and property, it is time for those discussions. Before estate planning documents can be drafted and signed, couples need to decide how they want their property distributed after their deaths, whether they desire life-sustaining medical intervention if they are terminally ill, and who they want to make decisions for them if they are unable to do so themselves. 

Depending on a couple’s situation, they may need to address children from a previous relationship, minor children or adults with special needs, charitable giving, special gifts of property, and other estate planning goals. Some couples may not be aware of all the topics which need to be addressed in an estate plan. An estate planning lawyer can facilitate discussions and ensure that important topics are not overlooked.

2.  Beneficiary Designations

Some significant assets pass outside of a probate estate. Therefore, it is important to update the beneficiary designations for these assets to avoid any questions or problems. For some couples, these accounts provide instant access to the funds a surviving spouse may need to pay debts and living expenses while they are probating an estate. Because retirement accounts have special rules and restrictions, it is a good idea to discuss these accounts with an attorney to determine the best way to handle the accounts to avoid tax burdens and estate taxes.

3. Insurance Matters

When newlyweds are reviewing their beneficiary designations, it is also a good time to discuss life insurance. Life insurance is another way a couple can ensure that a surviving spouse has the funds needed to pay bills and living expenses after an unexpected death. Many newlyweds do not have sufficient life insurance coverage to sustain the household with only one income. For young couples, purchasing life insurance now while they are in a lower age bracket is most cost-effective.

It is also a good idea to review other types of insurance coverage, such as car insurance, disability insurance, and homeowner’s or renter’s insurance. The couple may save money by combining insurance policies and bundling policies with the same insurance provider.

4.  Titles to Real Estate and Personal Property

If either spouse owned real estate before the marriage, it may benefit the couple to re-title the real estate in both spouses’ names. The same applies to vehicles, boats, and other property that has a title. There are several ways to title property that can be helpful in estate planning, such as titling the property as community property with right of survivorship. An attorney can explain the various ways to title property and the best option to use to meet estate planning and financial goals.

5.  Hire a California Estate-Planning Attorney to Prepare Documents

A couple may need a variety of estate planning documents to accomplish their goals and protect their assets. While you can locate generic wills, powers of attorney, and other documents online, using DIY estate planning documents is risky. Many of the documents found online do not contain all the language necessary to protect individuals and their property. If the document is not drafted and executed correctly, the document may be voided or reformed if challenged. A surviving spouse could incur substantial costs correcting a problem after losing their spouse. Instead of trusting something you find online, contact a California estate-planning attorney to prepare your estate documents. Contact us today for a consultation. Our estate attorneys understand the complexities involved in developing a comprehensive estate plan. In addition to ensuring documents are prepared correctly, you also benefit from the advice and guidance of an experienced attorney who understands probate laws and estate matters.

Estate planning and financial planning are two areas in which you can greatly benefit from experienced advice and guidance. However, some people overlook the benefits of including your financial advisor in the discussion when developing your estate plan. Our California estate planning attorneys discuss five ways your financial advisor can help you with your estate plan.

How Can a Financial Advisor Help You with Your Estate Plan?

1.  Assist You in Understanding How Changes to an Estate Plan Impact Your Overall Finances

Most individuals see their estate planning attorney when they want to change their will or trust, or after significant life changes, such as a divorce, the death of a spouse, or the birth of a child. The estate attorney assists you in making changes to the estate plan to ensure the plan continues to reflect your wishes and desires. However, those changes could have a significant impact on your overall finances. The changes could have an impact on your heirs as well. A financial advisor can analyze how your changes to your estate plan impact other financial matters now and after your death.

2.  Review Beneficiary Designations

Some assets pass directly to heirs without becoming part of your trust or probate estate, such as life insurance policies, annuities, some brokerage accounts, some financial accounts, and most retirement accounts. Because your financial advisor routinely works with these accounts, the advisor should also periodically review beneficiary designations to ensure they reflect your current wishes for your estate plan.

3.  Properly Titling Assets

For an estate plan to work, you must title assets correctly. Your financial advisor can review all assets to determine if they are titled properly. For example, you’ll want to be sure that assets are properly titled, with appropriate legal terms, if you want to transfer them directly to a joint owner such as a spouse upon your death. 

4.  Assist Estate Attorney with Trust or Probate Administration

After your death, your financial planner can work with your trust and estate attorney to prioritize what needs to be done right away to protect your assets for your heirs.  In some cases, the financial planner may be able to provide your heirs with immediate access to funds they may need after your death, or even for your own care if you’re incapacitated. Because your financial advisor may be the person most familiar with your assets after you’re gone, your advisor can assist your estate attorney and personal representative in identifying all assets, including assets that pass to beneficiaries and pass into your trust or probate estate.

5.  Coordinate Your Retirement Plan with Your Estate Plan

An important element of your overall financial health is ensuring that you have sufficient retirement funds for your own support, and so that you can leave a legacy for your loved ones. If you outlive your retirement funds, it could result in reduced care, and in debt for your heirs instead of property. Your financial advisor can assist you in coordinating your retirement plans and estate plans to help you reach your goals for retirement savings, long-term care planning, and legacy planning. 

Contact a California Estate-Planning Attorney for More Information 

If you have questions about estate planning or probate matters, talk with our California estate planning attorneys today. The first step in developing a comprehensive estate plan is learning about your options. Our attorneys can give you advice and guidance based on your unique situation, needs, and goals. Once you understand your options for estate planning, you can take the steps necessary to protect yourself, your property, and your family.