Probate

Tuesday, April 18, 2017

Legal Assistance for Fiduciaries


How can an estate planning attorney help me to fulfill my fiduciary duties?

A fiduciary is defined as any person who acts in a representative capacity, with legal authority, on behalf of someone else or a decedent’s estate.  There are several different types of fiduciaries, depending on the context, including a trustee and executor.  Fiduciaries play a vital role in estate planning and those who have been selected as a fiduciary will need to meet stringent legal standards or they could face legal repercussions.  If you have been named as a fiduciary, you should consult with a


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Friday, February 10, 2017

Do Heirs Have to Pay Off Their Loved One's Debts?


The recent economic recession, and staggering increases in health care costs have left millions of Americans facing incredible losses and mounting debt in their final years. Are you concerned that, rather than inheriting wealth from your parents, you will instead inherit bills? The good news is, you probably won’t have to pay them.

As you are dealing with the emotional loss, while also wrapping up your loved one’s affairs and closing the estate, the last thing you need to worry about is whether you will be on the hook for the debts your parents leave behind. Generally, heirs are not responsible for their parents’ outstanding bills. Creditors can go after the assets within the estate in an effort to satisfy the debt, but they cannot come after you personally.


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Friday, October 14, 2016

4 Myths of Estate Planning

While most people understand that estate planning involves providing for loved ones upon their passing, many are unclear as to what the estate planning process actually entails.  This unfortunately leads to stubborn myths about estate planning that this article seeks to clarify. 


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Wednesday, July 20, 2016

6 Events Which May Require a Change in Your Estate Plan


6 Events Which May Require a Change in Your Estate Plan

Creating a Will is not a one-time event. You should review your will periodically, to ensure it is up to date, and make necessary changes if your personal situation, or that of your executor or beneficiaries, has changed. There are a number of life-changing events that require your Will to be revised, including:

Change in Marital Status: If you have gotten married or divorced, it is imperative that you review and modify your Will. With a new marriage, you must determine which assets you want to pass to your new spouse or step-children, and how that may relate to the beneficiary interest of your own children. Following a divorce it is a good practice to revise your Will, to formally remove the ex-spouse as a beneficiary.


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Thursday, June 16, 2016

The Purple One’s Probate Problems


The Purple One’s Probate Problems

When Prince passed away earlier spring we lost a truly amazing musician. His music and showmanship were groundbreaking, but so too were his ideas about the rights of recording artists. Over the years he has been in court probably more than any other musician out there, fighting for control of his work product. He even famously changed his name to an unpronounceable “love symbol” during a legal battle in the 1990s.

In more recent years, he fought a constant battle against people who attempted to upload his songs and image to the internet.


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Wednesday, June 3, 2015

Soap Opera Star Sues Mental Health Center For Wrongful Death Of Son

Can an estate administer posthumous damages?

Kristoff St. John, star of The Young and The Restless, and his former wife, Mia Rosales St. John, a professional boxer, filed a lawsuit against La Casa Mental Health Rehabilitation Center for the wrongful death of their son. The suit alleges negligence and wrongful death against the Long Beach facility’s owner, Telecare Corp.

Their son, Julian, was in the facility on suicide watch. He had attempted suicide multiple times in the previous weeks including trying to walk into oncoming traffic and suffocation. Julian was under one-on-one observation, but a short time after that ended, staff members found him dead in a bathroom with a bag over his head. He was 24 years old.
The suit alleges negligence of the nurses and staff members for failing to keep harmful objects, such as bags, away from their son. The nurses and staff also allegedly did not perform all mandatory checks and falsified documents to cover up their neglect in caring for Julian.

The rehabilitation center recently issued a statement about the lawsuit through its public relations firm. The facility said in the statement the California Department of Health Care Services had recently reviewed the case and found the facility was compliant with all licensing laws and regulations. The facility also noted the Los Angeles Department of Mental Health reviewed the case and concluded the patient’s treatment was reasonable and followed clinical procedures.

OC Wills & Trust Attorneys have more than 20 years of estate planning experience, including estate administration. If you are involved in a lawsuit related to an estate or trust, we can provide knowledgeable advice. Contact our Orange County, California office today at (949) 347-5256 for a consultation.


Monday, June 1, 2015

5 Common Estate Planning Myths in California

I hear a lot of different information about the consequences of making a mistake in an estate plan. How can I separate fact from fiction? 

Estate planning is, of course, an important consideration for every family, regardless of size or financial situation. However, there are a number of myths out there, many of which are designed to coax folks into purchasing costly plans or unnecessary trusts on the promise of tax avoidance and the like. The following explores five common myths circulating the estate planning industry, followed by helpful suggestions to avoid being duped or misguided. 

Myth #5: Everyone needs a revocable trust: A revocable trust is an estate planning tool that requires testators (known as “grantors” or “settlors”) to retitle their property into the name of the trust, which will then be distributed according to the terms of the trust agreement. This tool is handy for probate avoidance, but will not necessarily save on estate taxes or other assessments if not properly drafted. Likewise, a revocable trust may not be necessary for everyone, as it can be costly to set up and maintain. 

Myth #4: A trust avoids estate tax: Only a very small fraction of estates in the U.S. are subject to the estate tax. To avoid paying estate tax, an elaborate and complex network of trusts, gifting, asset transfers, and charitable bequests is necessary – and begins long before the testators reach their final years. In sum, a simple trust will generally not avoid estate tax, and most individuals need not worry about this issue in the first place.

Myth #3: Probate is to be avoided at all costs: Many will have you believe that enduring the probate process will be an intolerable experience fraught with delay, expense and unnecessary court procedures. While true that probate proceedings can be inconvenient, executing an elaborate and expensive estate plan to avoid the process may be unnecessary for some, particularly those with a small estate. 

Myth #2: Transferring assets to my children will qualify me for Medicaid: This myth may be partially true, provided the transfers occurred long ago and fall outside the five-year look-back period. By contrast, transferring property to children immediately prior to applying for Medicaid will trigger a lengthy penalty period, and you may be better off selling the assets for value in order to pay for medical expenses prior to reaching eligibility.

Myth #1: I can download my will from the Internet: At first blush, downloading a will template from the Internet may seem like a cost-effective exercise, particularly if your estate is relatively straightforward. However, this can also invite disaster, particularly if the will form is not drafted with California formalities in mind.

Contact a reputable Orange County estate planning attorney today

 

OC Wills & Trust Attorneys have more than 20 years of experience guiding clients in their estate planning journey. Contact our Orange County, California office today by calling (949)347-5256.


Wednesday, May 20, 2015

Top 4 Ways a California Living Trust Can Enhance Your Estate Plan

I am thinking about executing a revocable living trust, but I am not sure if it will be beneficial. How will a trust help my family administer my estate? 


A revocable living trust is a popular and powerful tool for estate planners, and offers a number benefits for both surviving family members and beneficiaries. The following lists the top four ways in which executing a revocable living trust can help effectuate convenience, as well as possibly help high-net worth clients preserve assets and even avoid the over-imposition of estate tax.

#4: Increased Privacy – A revocable living trust is created with a trust agreement. It lists the creators (known as “trustors”), the trustees, and the beneficiaries. In the appendix, the trust lists the real and personal property placed in trust and subject to the distribution terms in the residuary estate clause. 

Assuming the trust is properly funded, and assets are fully re-titled in the name of the trust, the language of the trust agreement will govern the transfer of property. In other words, no public revelation of transfers will occur, and recipients will receive their inheritances seamlessly and privately – unlike the typical situation involving probate court (discussed further below). 

#3: Seamless Transition – As a follow-up to the explanation offered above, beneficiaries will not have to wait months (or years) for the estate to travel through the probate administration process. In many cases, beneficiaries will have access to their assets immediately, or within a few weeks if a deed or title transfer is necessary. As the testator, you may be able to further reduce the wait-time by creating payable-on-death accounts on behalf of your children or beneficiaries, which will transfer immediately upon remittance of a death certificate. 

#2: Possible Avoidance of Estate Tax - With more advanced estate and trust planning, married couples may be able to maximize their marital estate tax deduction to avoid the double-imposition of estate taxes upon the death of both spouses. Fortunately, there is no separate estate tax imposition by the State of California, however the federal government’s estate tax exemption is currently set at $5.43 million, with a 40 percent tax bill imposed on all assets above and beyond this limit. For married couples, using trusts can help maximize this even further upon the death of the second spouse – thereby leaving more for surviving children and heirs. 


#1: Avoidance of Probate - For estate valued at greater than $150,000, the administrator or executor will likely be required to file a Petition for Probate – which jumpstarts the official probate administration process, that can take up to 1 ½ years. Using a trust, assets will transfer from the trust corpus to the named beneficiary, and will not be subject to any probate proceedings or unnecessary inconvenience. 

If you are considering a revocable living trust, please contact experienced estate planning attorney Brian Chew. Conveniently located in Orange County, California, you can reach the office by calling (949)347-5256. 

Monday, May 18, 2015

Protecting the Assets of My Family Owned Business


What Can I Do to Protect Assets in Our Family Business?

Proactive business succession and estate planning can help preserve your business interests and allow them to be passed on to loved ones. This type of planning will require some thought and the process should start with some honest discussions among family members. There are many issues to consider, as outlined by Fidelity Investments in the link above, and many ways to plan around these issues.
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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. 


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