Estate Planning, Trust & Probate Law
Frequently Asked Questions
Every person has different estate planning needs and goals, but here are some basics things an estate plan may include:
- A simple will or one that addresses a more complex estate with significant assets and property
- Guardianships and conservatorships, where your will includes the naming of a guardian if you have children, and a conservator for any incapacitated adults in your care
- A trust that lets you manage assets while you are still alive, thus sidestepping the probate process
- The appointment of an agent under durable power of attorney — a trusted person who will take care of your legal, health and financial responsibilities if you are mentally incapable
- A health care directive that includes instructions on what to do if you may be near death, or suffer from a terminal illness
Except for the assets that will be passed by beneficiary designation or operation of law, your state’s probate laws will determine the distribution of estate assets if you do not have a will.
Whenever a significant life event occurs is the time you need to update your will or trust. A few scenarios exist, including buying a home, starting a business, the birth of children or grandchildren, getting a divorce, diagnosis of a serious medical condition or even receiving a significant inheritance.
A Living Trust gives title of your assets to a Trustee (usually you) to hold for your benefit. At your death, your named successor Trustee holds legal title to your property and may transfer your assets to your named beneficiaries without probate. Probate is also avoided if all of your significant assets are held as “joint tenants with rights of survivorship” or have beneficiary designations. There are pros and cons to consider, so whether you should avoid probate, and how to best accomplish it should be discussed with your estate planning attorney.
You can be charged with simple assault in two situations:
Your family will go through a process called Trust Administration. Upon death, the Successor Trustee must take steps to distribute Trust assets to beneficiaries and fulfill any other obligations of the Trust. We serve as counsel to the Trustee and provide assistance with the administrative duties required of the Trustee, and take advantage of any benefits offered by the Trust.
You can use an estate planning tool known as “Pet Trust”, which is created exclusively for the care of the settlor’s animals. A Pet Trust allows you to arrange for the care and maintenance of your animals in the event of your disability or death.
An Advance Health Care Directive and a Durable Power of Attorney may help you avoid the need for a conservatorship.
An Advance Health Care Directive is a document that will allow you to name an individual to make health care decisions on your behalf if you are unable to make these decisions yourself.
A Durable Power of Attorney (for finances) allows you to appoint an individual to manage your finances if for some reason you are unable to do so.
If I have already been appointed as limited conservator, do I also need a conservatorship of the estate?
It depends. You don’t need a conservatorship of the estate if the adult you care for receives public assistance, such as Supplemental Security Income (SSI), but has no other assets. However, if the adult has other assets, then a conservatorship of the estate will likely be needed.
If there is an emergency, the Court can appoint a temporary conservator. The Regional Center may also have the authority to make emergency decisions on behalf of the adult if no limited conservatorship has been established.
Yes, by establishing an Irrevocable Trust you may prevent Medi-Cal from making an estate recovery claim against your assets. However, if you are receiving Medi-Cal benefits and you die without a trust, your estate will be administered through probate, at which time Medi-Cal can make a claim against your estate.
My father has become incapacitated and he does not have any estate plan in place. How can I manage his assets if he no longer has the capacity to do so?
You can manage his assets by being appointed as conservator of the estate. As conservator of the estate, you will have power over your father/mother’s financial affairs. As conservator, you will also have the duty to protect and preserve the assets from those who might exploit or take advantage of your father’s assets.
In no other persons or entities are nominated in the trust to serve as successor trustee, it may be necessary to file a petition with the Court requesting the appointment of a new successor trustee.
I was nominated as trustee of my mother’s trust; do I have to hire an attorney to guide me through the administration of the trust?
Although you are not required to hire an attorney, it is advisable that you do so. As trustee, you have several duties, such as:
- Identify, inventory and protect all trust assets
- Pay taxes
- Notify creditors and pay outstanding debts
- Manage and distribute assets to the beneficiaries
Because your duties as trustee must be discharged in a timely manner and because a trustee may be personally liable or obligations arising from ownership or control of trust property, it is essential that you have knowledgeable counsel to guide you through the administration of the trust.
I have a special needs child. Is there any estate planning tool that can help me provide for his needs and at the same time protect his assets without jeopardizing his eligibility for government benefits?
Yes. If you have a child with special needs, you may want to establish a “Special Needs Trust”. A Special Needs Trust can allow you to provide for the needs of your child and ensure that he remains eligible to receive government benefits.
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