CA Estate Planning Blog

Tuesday, December 3, 2013

Holiday Estate Plan

What is the greatest gift you can give your family this Holiday Season?

Peace of mind.  Getting your Estate Plan in order is not always at the top of everyone’s to do list, but it should be.  With the proper legal documents in place, you can help ease the difficulties that your loved ones will face upon your incapacity or passing.  Your assets can be managed by someone you trust.  Your children can be cared for by someone you know will treat them well.   Your money will be available for your loved ones when they need it and will be easily accessible.  In short, you will provide security and stability for those you care about most when they are dealing with a great loss.

Here are some of the common issues and questions we encounter:

I don’t want to consider something bad happening to me.

You don’t think about getting into a car accident every day, but you buy auto insurance just in case.  Planning for issues that might arise doesn’t make bad things happen, it mitigates the damage when they do.   If your Estate Plan is complete then you don’t have to continue to focus on it and expend energy needlessly.  It becomes the equivalent of auto insurance and when life changes or new drivers are added you might have to review your policy and make adjustments but you will be protected in the meantime.     

Why do I need an Estate Plan?

Generally speaking, if you have assets in excess of $150,000 or have young children, you need an Estate Plan to avoid the Probate process.   In the absence of valid legal Estate Planning documents your loved ones will have to petition the Probate Court to determine what will happen to your assets or your children.  The Probate process can be difficult, overwhelming, costly and lengthy.  

What does an Estate Plan include?

Living Trust – a legal document that directs your successor Trustee to carry out your wishes with regard to your finances, your children, your health and your legal affairs.  The power of a Trust is that it allows your assets to pass directly to your beneficiaries without going through Probate.

Pour Over Will – allows a decedent’s nominal assets to be included in their Trust.

Healthcare Directive – allows you to appoint someone to decide about your medical treatment if you cannot decide for yourself and gives them parameters regarding your wishes.

Durable Power of Attorney – allows you to name an agent to act on your behalf and carry out your financial affairs.

How do I go about doing my Estate Plan?

Sometimes tasks seem more daunting than they really are because we don’t know what is involved in the process or where to begin.  Getting your Estate Plan in order is simple.  Consider the ages of your children, think about what you would want to happen to them if something happened to you tomorrow, or 10 years from now.  Determine who you would want to act in your stead, with regard to your finances and your healthcare.  Take stock of your assets: homes, cars, boats, IRA’s, 401k’s, Life Insurance, etc., and decide how you would want them divided.  Consider what quality of life you would want if something happened to you. 

How do I get started?

Contact our office, make an appointment for a consultation and give the gift of peace of mind to your family this Holiday Season.

 

Happy Holidays from all of us!


Wednesday, November 6, 2013

What Happens If You Forget to Put An Asset into Your Trust? A Pour-Over Will Can Help

What happens if I forget to put an asset into my Trust? This is a question that many of our clients ask during our meetings.

 

Legally, if an asset was not put into the trust by title or named to be in the trust, then it will go where no asset wants to go…to PROBATE. The probate court will take much longer to distribute this asset, and usually at a high expense. Sometimes, attorneys can file what is called a Heggstad Petition in which they claim that it was the Trustor’s INTENT to put this asset inside the Trust. The Court may or may not grant this request, depending on whether the Trust was correctly set up, if any of the assets were left out of the Trust and what documentation is available to prove that this was the Trustor’s intent. This, too, takes a more complicated route to get the asset where it needs to be. Therefore, our office provides a built in legal document that helps prevent this from happening.

 

In our living trust package, we provide not only a Living Trust, but a Pour-Over Will. What is a Pour-Over Will? A Pour-Over Will is basically a “catch-all” protective document that is intended to guarantee any assets which somehow were not included in the trust becomes assets of the trust upon the Trustor’s death.

 

The advantage of the pour over will is that it will take care of the assets that you don’t get around to transferring to the trust before your death. The disadvantages of the pour over wills is that that property will have to go through probate, and this force the living trust to go on longer after the death of the Trustors. However, most properties will not have to pass though the pour over will if you have a good estate plan and have transferred all the most valuable assets to the trust while you are alive and well. The pour over will should only catch all the leftover things that are of minor value and if the estate that is left outside the Trust is small enough, you may qualify for the Special Small Estate Probate Procedures. This procedure is simpler and less expensive than going through regular probate. 

If you have questions regarding this Pour Over will and our Living Trust Package, please don't hesitate to contact our office at 949-288-3598 or brian@mycaliforniaestate.com and we will be happy to assist you. 


Tuesday, October 8, 2013

Common Questions on Probate

Common Questions: What is Probate and What Goes Through Probate?

When a loved one passes away in California, his or her estate often goes through a court-managed process called probate or estate administration where the assets of the deceased are managed and distributed.  California probate is not particularly onerous, and many families can avoid probate altogether if their estate is small enough, but it does have one huge drawback: it’s extremely expensive.

The length of time and cost needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court. 

Every probate estate is unique, but most involve the following steps:

  • Filing of a petition with the proper probate court.
  • Notice to heirs under the Will or to statutory heirs (if no Will exists).
  • Petition to appoint Executor (in the case of a Will) or Administrator for the estate.
  • Inventory and appraisal of estate assets by Executor/Administrator.
  • Payment of estate debt to rightful creditors.
  • Sale of estate assets. 
  • Payment of estate taxes, if applicable.
  • Final distribution of assets to heirs.

 If your loved-one owned his or her assets through a well drafted and properly funded living trust, it is likely that no court-managed administration is necessary, though the successor trustee needs to administer the distribution of the deceased's assets. 

Does probate administer all property of the deceased?

One of the most common questions about probate is what property is exempt from probate, and what property must go through probate.  Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries. 

There are certain types of assets are what is called “non-probate assets” do NOT go through probate.  These include:

  • Property in which you own title as “joint tenants with right of survivorship”.  Such property passes to the co-owners by operation of law and do not go through probate.
  • Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries.
  • Life insurance policies.
  • Bank accounts with “pay on death” (POD) designations or “in trust for” designations.
  • Property owned by a living trust.  Legal title to such property passes to successor trustees without having to go through probate.

  

How much does probate cost?  How long does it take?

Common expenses of an estate include executor fees, attorney fees, accounting fees, court fees, appraisal costs, and surety bonds.  These typically add up to 2% to 7% of the total estate value. Most estates are settled though probate in about 9 to 18 months, assuming there is no litigation involved. California is one of the few states that allow lawyers to charge a statutory fee, which is an amount that is a percentage of the value of assets that go through probate.  The current rates for California Statutory Probate fees are:

  • 4% of the first $100,000 of the gross value of the probate estate
  • 3% of the next $100,000
  • 2% of the next $800,000
  • 1% of the next $9 million
  • .5% of the next $15 million

In addition,  the cost and duration of probate can vary substantially depending on a number of factors such as the value and complexity of the estate, the existence of a Will and the location of real property owned by the estate.  Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay. 

Bear in mind that simply having a will does not necessarily circumvent the probate in California.  While a will is helpful in determining how your estate is to be distributed, it is still a mandated court process in which the courts will determine its validity and pay any outstanding debts from the estate before any of the remaining assets can be distributed to the beneficiaries. Contact your California estate planning attorney if you have more questions on how to avoid probate. 


Wednesday, October 2, 2013

Divorce and Estate Planning

There are a variety of factors to consider when you get divorced. Although the number of items to take care of can feel overwhelming, some are more important than others. Consider this, if something were to happen to you today the person who would most likely make health care decisions for you is the same person that you are divorcing. Frightening thought. In order to avoid this reality, it is crucial to revisit your Estate Plan when you file for divorce.

Your Estate Plan refers to what you want to have happen to your person, your assets and your children when you cannot make those decisions for yourself, or when you are no longer here. These decisions will be carried out through the Trustee of your Living Trust; the Executor of your Will; the Agent of your Health Care Directive and the Agent of your Power of Attorney. For married couples the most common designation of Trustee, Executor and Agent is their spouse.

While the law is smart enough to automatically revoke the appointment of your spouse as your Power of Attorney, Health Care Agent, Trustee and Executor upon divorce, the filing for separation does not have the same effect. That is why it is critical to revoke any previous determinations and memorialize any of your new wishes as soon as you file for divorce.

Here are some of the questions to think about:

BENEFICIARIES

  • Do you have children?
  • Who will your things automatically go to if you don’t take care of your Estate?
  • Who do you want your things to go to?

ASSETS

  • What assets do you have now?
  • What assets will you have when your divorce is final?
  • How difficult will it be for your loved ones to access your assets?

GUARDIANSHIP

  • What will your custody agreement look like?
  • Will your ex-spouse automatically receive custody of your kids if you are gone or incapacitated?
  • Who will take care of your children if both you and your ex-spouse are gone?
  • Will the guardian for your children be able to financially support your children?

HEALTH CARE

  • Who can you count on to make decisions about your health?
  • Will that person know what your wishes are?

POWER OF ATTORNEY

  • Who can you trust with your assets?
  • Will that person know what your wishes are?

 

These are just some of the questions you will want to ask yourself when you divorce, but like many situations it’s just the tip of the iceberg. You should consult an experienced attorney that can help walk you through these issues.


Friday, September 13, 2013

Estate Planning for Women

Estates planning for women have changed drastically over the past several years. Many women today have their own careers, and manage their own financial planning. 

Estate planning does not pertain only to death.  A typical younger woman nowadays should start thinking about her own estate plan as soon as she is capable of starting her own life outside of her immediate household. She can even start when she begins to travel on her own, or her career starts and she obtains substantial assets.  OC Wills and Trust Attorneys can put these goals into action and get you started on your planning earlier.

The most important and crucial time for women to have an estate plan ready is when they become a new mother. OC Wills & Trust Attorneys can help you set up a college fund for your new baby, get you to prepare for retirement, or just to name a guardian to raise your child should the worst happen. Although it may be hard to think about, it is something that takes a load off your shoulders once it is done, mostly because it ensures the best person to care and raise your child(ren).

Women now generally outlive their spouses. In the past, the male spouse will generally take care of the household finances, but once he passes away, the surviving spouse would be “taken care of” but she would not really have any control or say over her assets. In the past, AB Trusts are common for married couples. Now, with the new updated exemption laws, portability allows the first spouse to die to transfer his/her unused estate tax applicable exclusion amount to the surviving spouse for their own tax purposes. With this update in the law, the surviving spouse is able to manage his or her own assets, and be able to better make decisions on her assets after her own death. 

Please give us a call at 949-288-3598 to schedule your Free Consultation with us. 


Tuesday, August 20, 2013

Estate Planning and Bankruptcy [Nelson Radio]

Check us out on Nelson Radio! Brian talks about the things we need to be aware of if a living trust is not set in place. What if something were to happen to you tomorrow? What then?

 


Monday, August 19, 2013

Both Married and Unmarried Couples Can Have Trusts

People tend to think that you have to be married in order to have a trust. However, unmarried couples should also have living trusts. 

For married couples, a basic joint living trust is common and will meet all their needs. Both spouses will have control over the whole trust and can revoke the trust at any time. Each person will be a grantor and a trustee of the joint trust. Each person can also decide who will be a beneficiary of their share of the community owned property, and for his or her separate property as well.

However, both married and unmarried couples can create individual trusts. Individual trusts are useful if one spouse or both have a lot of separate property…or if one spouse just wants full control of their own property. Recently married couples can keep their individual trusts in order to maintain their previously acquired separate property.

Do note, however, that jointly owned assets are not very well suited in individual trusts. Spouses who co-own real property will have to record two deeds to transfer half-ownership of their interest into their separate trusts.  


Tuesday, July 30, 2013

Veteran's Benefits [Exemptions]

There are a variety of benefits out there for the men and women who bravely served our Country.  Some of these benefits are well known, others less so.  While looking into some property tax exemptions for an inheritance issue, I came across two Veterans Property Tax Exemptions.  Although I was familiar with the exemptions it occurred to me that they may not be well known so I thought they were worth sharing.

 

Types of Veterans Property Tax Exemptions

1)    Veteran’s Exemption

2)    Disabled Veteran’s Exemption

  • Basic
  • Low Income

 

Veterans Exemption

The California Constitution provides a $4,000 real property (for ex. a home) or personal property (for ex. a boat) exemption for honorable discharged veterans or the spouse or pensioned parent of a deceased, honorably discharged veteran.   There are restrictions on the value of property a claimant may own, so the exemption applies to only a limited number of qualified veterans, but it is still worthy of mention.

 

Disabled Veterans Exemption

The California Constitution and the Revenue and Taxation Code provide a property tax exemption for the home of a disabled veteran or an unmarried spouse of a deceased disabled veteran.  There is a basic $100,000 exemption or low income $150,000 exemption (both exemption amounts are annually adjusted for cost of living index, as of January 1, 2012, the exemption amounts are $119,285 and $178,929 respectively) available to a disabled veteran who because of an injury incurred in military service: is blind in both eyes, or has lost the use of two or more limbs, or is totally disabled as determined by the US Department of Veterans Affairs or by the military service from which the veteran was discharged.  

 

An unmarried surviving spouse may also be eligible if the service person died as the result of a service-connected injury or a disease incurred while on active duty in the military even if the veteran was not eligible during his or her lifetime.  While the Veterans Exemption has personal cap requirements, the Disabled Veterans Exemption does not.  The disabled veterans exemption is only available on a veteran’s principal place of residence, and the home may only receive one property tax exemption, the greater benefit will be taken.

 

The issues regarding these exemptions are complex and the eligibility requirements are specific.  And the filing requirements differ for each exemption.  If you are interested in learning more about property tax exemptions contact our office to sign up for our next seminar.

- See more at: http://mycaliforniaestate.com/lawyer/2013/07/30/Veterans-Aid-and-Attendance/Veterans-Benefits-[Exemptions]_bl8953.htm#sthash.KzoDKGSe.dpuf


Tuesday, July 16, 2013

Fear Can Be a Great Motivator

I am often surprised by the number of situations where professionals use fear to spur people to take action.  Action which is often in that person’s best interest to take.  There are a number of examples in our everyday world: dentists who shock you with photos of a diseased mouth; doctors who quote statistics of how many people have died from cancer; insurance agents who tell you horrible stories of homes destroyed by disaster; and even attorneys who dramatically recount tragedies to prove their point. 

I’m not suggesting that those tales are untrue.  What I am suggesting is that using fear as a motivator to get you to do something is unnecessary and can be construed as condescending.  Making someone afraid assumes that if you educate them about a situation they won’t make the right choice.  I myself, believe that most people are competent and when enlightened by the facts will make an informed decision that is in their best interest.

The majority of professionals are great advocates for their clients.  Most dentists, doctors, insurance agents and attorneys study a particular area at length because it interests them and they genuinely want to use their knowledge to make people’s lives better.  And when given the chance, those are the types of specialists I prefer to work with.  The one’s who take the time to explain the situation to me, help me understand my options and treat me with respect.

So rather than scare you with horrific images about what happens when you don’t have an Estate Plan, let me explain some of the benefits of what an Estate Plan can accomplish. 

SIMPLICITY:

  • If you have a Guardian Appointment your children will be cared for by the person of your choosing and not that of the courts.
  • If you have a Power of Attorney then you will choose who will be responsible for your assets, how they will manage them and when the time comes they will be able to access those assets without delay.
  • If you have a Will your personal belongings will be directed to the person you want to receive them and any of the smaller incidents of your Estate can be seamlessly transferred to your Living Trust.
  • If you have a Health Care Directive you can appoint someone to act in your stead and make health care decisions for you when you are unable to do so for yourself.  
  • If you have a Living Trust you can help your loved ones avoid dealing with the courts to manage your affairs, your assets and your Estate the way you would want it handled if you were able to do so yourself. 
  • An Estate Plan enables you to protect your loved ones and your assets.

While fear may be a great motivator, you deserve better.  Get working on your Estate Plan now because it’s the smart and right thing to do.   If you have questions about how Estate Planning works, please do not hesitate to contact us.  We will spend time getting to know you, your particular situation and your goals.  We are interested in helping you learn how to help yourself and your family. 


Tuesday, June 18, 2013

Nelson Radio

Nelson Radio is a great radio channel focusing on Real Estate, Business, and Financial Law. Tune in every Saturday from 2-3 pm PST and learn from different experts and speakers on essential topics that every person should know about their estate, business, or just finance in general. 

 

 

We were featured on the June episode, where our Managing Partner Brian Chew talks about the importance of having an estate plan. 

 


Tuesday, June 11, 2013

To Zoom or Not to Zoom a Living Trust

We’ve all heard the claims that we’re an instant gratification society.  We drive thru windows for sustenance, find our new homes virtually without crossing the threshold and diagnose our ailments with the help of our handheld devices.  So why then would it not make sense to use a quick and easy online service to create some of our most important legal documents?  

While the rhetorical question may have satisfied its own query let me offer a few supporting arguments for the benefits of substantial, real and comprehensive.  First, fast food is cheap and convenient but it’s notoriously unhealthy and not meant to make up the basis of nutrition.  Second, a picture is worth a thousand words but sometimes the picture doesn’t tell the whole story.  And lastly, while you might be able to cure a simple stomachache, would you really want to bet your life on the idea that you didn’t overlook a more serious problem.

There’s no point in trying to bombard you with clichés, or instill you with doubt and fear about the process.  The point is to educate you and help you understand what is involved with the quick fixes of the world.  The following is an excerpt from the Disclaimer on LegalZoom, “We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies.”

In the spirit of thoroughness I attempted to create a Living Trust online.  The questions that were posed to me were straightforward, however on occasion my answers were not.  If I had been a single person with one beneficiary, the online version probably would have provided sufficiently for my estate planning needs.  However, what if I was a divorced woman who owned property with my ex husband as well as my brother and wanted to designate my best friend as my children’s guardian.  While I’m sure the support staff would have made an effort to help me through those questions, the system was not set up to deal with these anomalies.      

There are a variety of benefits to dealing with a live attorney when discussing your estate planning needs.  They provide comprehensive tailored help to address all of your unique needs.  They ask pertinent questions and take time to understand all of the nuances of your case.  And in the end the best of them provide substantial legal advice, explanations of the consequences of your choices and make appropriate recommendations.  We may very well be a society of instant gratification, but sometimes there is no substitute for the real thing. 


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