As loved ones age, families can run into many tough decisions about how to care for them. These decisions become even harder if loved ones start losing mental capacity.

So, what can families do if they believe their loved one is mentally incapacitated?

First, how can you tell a loved one is incapacitated?

It is common for even the closest family members of a loved one to overlook the signs of incapacity or be in denial about them. This is often because it is emotionally painful to face this reality. Sometimes, the mental decline is so gradual that it is not markedly noticeable, or they might not be aware of the signs of mental incapacity.

The California Probate Code offers a legal definition that explains common characteristics and factors that could indicate mental incapacity. These factors include, but are not limited to:

• Inability to process information;
• Loss of memory;
• Struggles to recognize familiar places and people;
• Difficulty reasoning and communicating; and
• Experiencing hallucinations, in extreme cases.

These are the common signs that an individual lacks mental capacity. If individuals notice these signs in their loved one, family should first ascertain whether the loved one did advance planning for their incapacity. If they do not have a comprehensive estate plan that includes such planning, it might be beneficial to consider a conservatorship.

What should you do if your loved one has a lack of mental capacity?

Families might be hesitant to establish a conservatorship if they do not think their loved one is incapacitated. Thankfully, there is not often a reason to worry. It is difficult to establish an unwarranted conservatorship. California Courts have an extensive process they complete to prove someone is incapacitated and that conservatorship is the least restrictive available option for the loved one.

It is possible to begin this process by:

1. Petitioning for a conservatorship: Most family members have the right to propose a conservatorship for their loved ones. The petition requires family members to complete a considerable amount of paperwork to provide information. It is beneficial for families to consult an experienced attorney to ensure this paperwork is properly completed.
2. Requesting an official evaluation of the loved one: This is a key part of the court process. The law clearly states that the diagnosis of mental incapacity is not enough to warrant a conservatorship. So, it is necessary to request a medical evaluation of the loved one’s mind and body.
3. Supporting their loved one: This can be a scary and confusing time for both the family and their incapacitated loved one. Individuals should provide their loved one with love and support during this stressful time.

A conservatorship might not work for everyone. If the loved one did estate planning, conservatorship may not be necessary. Regardless, it is important for families to take action to protect their loved ones rights and best interests if they become incapacitated.

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It is no secret that the probate of an estate can be a long and complicated process. There are several details families must be aware of and steps a personal representative must complete to bring the estate to a condition for it to be closed and distribute the assets left behind.

However complex the process is, what about when it is complete? What is the process for closing a probate estate in California?

1. Submit the Petition for Final Distribution

To close a probate estate, executors/administrators must file a Petition for Final Distribution with their respective probate court. This often includes:

• The status report: This document should explain the status of the probate estate and confirm whether or not the estate is ready to be closed.
• The final account: This account should detail all of the financial activities regarding the estate throughout the entire probate process, such as paying debts.
• A record of what executors/administrators have done: Executors or administrators should also submit a report that explains everything they have done with estate assets.
• Distribution plan: This should account for all the beneficiaries who will receive assets from the loved one’s estate, as well as which assets they will receive. Executors must be detailed with this plan. If they are not, the probate court may not approve the petition.
• A request for approval: This is an official request for the probate court to approve the probate estate and complete the distribution.

A status report and final account are not always necessary under California law. Families should review their individual circumstances to determine if they must file these documents to close the probate estate. It is often beneficial for families to work with an experienced probate attorney throughout the probate process, so they can avoid risks and errors, as well as protect their rights.

2. Distribute the assets

To finally close the estate, executors must:

• Ensure all debts on the estate are paid;
• Distribute the assets exactly as they explained in the Petition for Final Distribution;
• Collect receipts from the beneficiaries assuring that they received the property from the estate; and
• File all of the receipts with the probate court.
• Request to be discharged as the executor/administrator from the probate court

Every family’s situation is different, and the process of closing their loved one’s probate estate might require some additional steps. However, after this general process is complete, families can close the probate estate and move forward.

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According to the World Health Organization, someone is diagnosed with dementia roughly every three seconds.

That can be an alarming fact to think about, especially if you have aging parents or loved ones, or a family history of dementia. However, being on the lookout for the symptoms of dementia can help you ensure your loved ones get the care they need as soon as possible. So, here is an overview of some of the common symptoms and signs your loved one might have dementia.

Memory loss

Forgetfulness or memory loss is the most common symptom connected to dementia. After all, it is also the primary effect of the disease. However, it is not always immediately evident in the early stages of dementia. Earlier on, this symptom often manifests when your loved ones:

• Repeat questions;
• Repeat tasks they have already done;
• Forget where they are, and how they got there; and
• Get lost in familiar places.

This is not the common forgetfulness where you remember something you lost or what you were thinking about instantly. It is important to remember that for individuals with dementia, they will have significant trouble remembering again. And forgetting these issues often causes them great distress and confusion.

Difficulty completing regular or familiar tasks

In the early stages of dementia, your loved ones might also find things they do every day suddenly challenging. These tasks often include:

• Their basic work duties
• Shopping or making a grocery list
• Communicating with others
• Cooking or baking
• Personal care tasks

Of course, as individuals age, they might need some additional help with these tasks. But dementia is not normal aging. When these tasks become frustratingly difficult and interrupt your loved one’s daily life, then it might be a sign of dementia.

Trouble with motor skills and coordination

Most people only look out for mental symptoms when it comes to dementia, but there are often physical symptoms as well. These physical symptoms often involve individuals forgetting actions with mind-body connections or muscle memories, such as tying their shoes.

Changes in personality

The frustration from all of these symptoms combined often results in a significant change in your loved one’s personality. It is common for individuals to develop severe anxiety, uncharacteristic anger or even paranoia.

If you witness these symptoms in your loved one, it might be time to arrange a visit to their physician.

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Taking on the role of a trustee is a great responsibility. In the past, we have discussed the particular legal duties that trustees have when administering a trust in California. However, another essential task all trustees should complete is keeping records throughout the entire process of the trust administration.

Organizing a system to maintain records is important to avoid legal disputes and liability, but also to ensure that trustees accomplish all of their duties.

So, here is a brief overview of some of the items that trustees should document.

Keep and update an inventory of the trust assets

When the creator of the trust passes away, the trustee should determine the value of the assets held within the trust and document this in their personal records and with the court.

It is also critical to update this inventory whenever a beneficiary receives assets. These updates should detail:

• How much the beneficiary received;
• When they received it; and
• How much remains within the trust.

For example, the beneficiary of a special needs trust often receives a monthly income, so to speak, from the trust. Therefore, the trustee must ensure that they update the inventory of the trust every month in coordination with this.

Obtain copies of all relevant documents

In addition to their inventory, trustees should obtain and organize copies of official documents, including:

• A copy of the trust itself and any amendments to the trust
• Any legal documents pertaining to the trust
• Deeds to real property owned by the Trust
• Documents pertaining to ownership, value, or insurance for any trust asset
• Bank or account statements
• Tax documents or returns
• Receipts from any expenses from the trust

This allows the trustee to easily reference these documents if necessary.

Monitor documentation of all decisions

Trustees need to keep a record of every decision they make regarding the trust. Individuals can choose what they wish to include in this log, but it is helpful to include:

• Details of the decision-making process;
• Reports from professionals that provided information necessary for the decision
• Records of interactions with beneficiaries about this decision; and
• Their reasoning behind the decision.

Therefore, if there are any disputes or questions about a trustee’s decision, they have direct documentation of their decision to avoid legal issues or liability.

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When parents start aging, many adult children take on the duty of caring for them. Many might see it as their responsibility since their parents took care of them as they grew up. 

However, becoming a caregiver can be both a physically and emotionally stressful situation for any one person and their family. Caregivers might see it as their duty to care for their parents, or the caregiver may be the elderly parent’s legal conservator who has the legal responsibility to secure quality care the parent needs. But when might it be time to consider obtaining a professional caregiver?

Regardless, here are a few circumstances when a family caregiver or conservator should consider obtaining a professional caregiver:

1. The caregiver can no longer meet their needs: It is completely understandable that a child wants to do what they can to care for their parent. However, if they cannot meet their parent’s needs-often specifically their medical needs if the parent has a serious illness-then hiring a professional caregiver might be a good option.
2. The parent wishes to stay in their home: In many cases, conservators can find a nursing home or assisted living facility that will best meet their loved one’s needs. However, if the aging parent still has the mental capacity to make a rational decision and wants to stay in their home, a professional caregiver can often come to their home.
3. The caregiver needs a break: Caregiver burnout is a real problem individuals face. And it can be dangerous for both the caregiver and their parent. Finding care options during the day or perhaps switching off shifts with a professional caregiver can help individuals avoid the risk of caregiver burnout and still meet their loved one’s needs.
4. The adult child lives far away: In past blog posts, we have discussed how the use of technology is helping caregivers who do not live near their aging parents. However, there may come a time when technology is insufficient for the aging parent to safely continue living independently. It is an option for individuals to get a professional caregiver to obtain some support and help in the care of their parents.

If family caregivers consider hiring a professional caregiver, they must take great care throughout the process. They should ask their loved one what their opinion is and understand their perspective. And they must ensure that they take great care to consider the professional caregiver’s qualifications and ensure they will meet their aging parent’s needs.

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Many people know that creating a will often involves several steps, including taking an inventory of one’s assets and clearly documenting one’s wishes. And then, they must go through the process of ensuring their will is valid by finding fit witnesses to sign the will and attest that the individual was of sound mind when they created and signed their will. 

However, in California, this is not the only option that individuals have to establish a will. California law accepts holographic wills as a valid will. However, families should be aware that they might run into some obstacles if their loved one has a holographic will.

First, what is a holographic will?

According to California state law, a holographic will is a will that:

1. Does not necessarily need witnesses
2. Is handwritten by the creator of the will
3. Is dated by the creator, who had the intention of making a will

Essentially, a holographic will is an alternative option for creating a will that does not involve the usual extensive estate planning process.

A holographic will could create potential challenges in probate

Holographic wills are legal and valid alternative wills. And, when done right, they are just as effective in protecting a loved one’s wishes and estate as well as providing for their family. 

The process of administering a holographic will is essentially the same as any other will, including filing with the correct probate court to validate the will and distribute the assets.

However, families can often run into issues during the process of validating the will and administering the estate. These issues often include, but are not limited to:

• Holographic wills might not cover potential probate issues or correctly establish beneficiaries, especially if they are made without an estate planning lawyer’s counsel.
• Will contests might be more common, especially if there is no way to confirm the creator of the will was of sound mind at the time they made it.
• Sometimes, even messy handwriting or grammatical errors in the holographic will can cause significant problems in probate.
• And if the holographic will was meant to replace another legally valid will, it might not be valid.

All of this is not to say that holographic wills are not a valid estate planning option. However, individuals must take great care when creating these wills to ensure their loved ones do not run into complex legal issues after they are gone.

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There are two topics that many individuals do their best to avoid talking about: money and the end of their life.

This was clearly shown in a 2016 study conducted by Fidelity Investments. The study found that many families disagree about when it is necessary to discuss finances and end-of-life concerns. And nearly 43% of parents reported that they had not had conversations with their adult children about these topics.

Having these conversations is never easy-for both parents and their children. However, they are necessary. So, how can you start this conversation with your parents?

First, why is this conversation important?

Unfortunately, merely having an estate plan does not magically resolve any issues your family could face after the death of a loved one. Your parents may have outlined their wishes in a will or established powers of attorney in compliance with California law, but while they are still healthy, they should still take the time to explain their wishes clearly. This can:

• Reduce your uncertainty about their future, as well as your own
• Allow you to protect your loved one’s best interests and needs better
• Make the estate administration and probate process easier for your family

So, here are some critical tips to help you approach this conversation.

1. Set up a time to talk

It is likely not a good strategy to spring this conversation on your loved ones. Scheduling a specific time to talk in a comfortable environment when no one is busy can help ease the stress on everyone. 

Planning ahead of time also gives both you and your parents time to prepare:

• You can find a good way to open the conversation and determine what you want to say, as well as how you want to say it.
• Your parents have time to decide what they want to say as well and collect the necessary documents.

2. Try to keep the conversation positive

Discussing estate planning is not usually easy. And your parents might not be forthcoming. So, how do you keep such a conversation positive? It can help to: 

• Ensure your parents and their wishes are the center of the conversation
• Concentrate on their values, as well as the values you share
• Explain that you want to know this information so that you can protect them

Genuinely listening and empathizing with your parents is essential. Talking about the end of your life is not easy-so, treat your parents how you would want to be treated while talking about these difficult topics.

3. Most of all, be patient

While these conversations are important, you should not pressure your parents into having them when they are not ready. Starting this conversation slowly and continuing it over time is helpful. Know that you do not have to dive into the most challenging topics right away.

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Nowadays, many people own property outside of their home state. Whether their family has a cabin or a vacation home, the out-of-state property can provide a nice getaway from everyday life for everyone in the family. 

But what happens to this property if your loved one who owned it passes away? 

No one wants to think about what could happen when they lose a loved one, but these complex situations often become a reality for many people. So, here is a brief overview of how to handle out-of-state properties in probate.

Property out-of-state requires ancillary probate

It is a general rule across the country that all real estate properties must go through probate in the state where they are located.

Therefore, families usually have to open two separate probates:

1. Main probate occurs in your loved one’s home state, or where they actually lived. Courts determine where to file the main probate based on where your loved one was registered to vote, which driver’s license they had and where they received their mail.
2. Ancillary probate is a separate administration to handle the out-of-state property. Families must first open the main probate and validate the will. Then they can offer the will to the other state to begin the ancillary probate process.

How does ancillary probate work?

Ancillary probate works similarly to the regular probate process. The main difference that families must note is that ancillary probate will be subject to the probate laws of that specific state where the property lies. For example, if your loved one lived in California, but owned property in Washington, then the ancillary probate process is subject to Washington’s probate laws. 

To open ancillary probate, individuals should:

1. Consult with an attorney to handle the ancillary probate effectively
2. Familiarize themselves with the probate laws of the other state
3. File the main probate in their home state
4. Obtain an official copy of the will to begin ancillary probate in the other state

The process of ancillary probate can be complex and time-consuming, but being prepared can make it much easier for your family.

Is it possible to avoid ancillary probate?

Families could avoid ancillary probate if their loved one took measures in their estate plan. There are specific strategies that can handle the property without probate, including:

• If the out-of-state property has joint ownership or is community property
• If your loved one established a revocable living trust to pass down the property
• If your loved one designated the property to transfer-upon-death

Without these measures, families likely will have to open ancillary probate. However, speaking with an experienced estate attorney can help families ensure they protect their rights and their loved one’s property. 

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The probate process can be a complex situation to navigate. And dealing with such a complicated process after losing a loved one can be distressing. 

Because of all of the details and emotions involved in this process, California families are often left with a lot of questions when they are facing the probate process. One of the most common questions that families have is: how long could probate really take?

Stories about probate can create misconceptions of how long it takes

Many people hear stories about celebrity estates that take years to administer. One of the most recent examples involves singer Tom Petty’s estate, which is locked in a dispute between his widow and his daughters.

Stories like this lead many people to worry about how long it will take their family to complete the probate of their loved one’s will.

So, how long does probate take?

How long the probate of a will takes depends on several factors, including, but not limited to:

• The number of beneficiaries: Naturally, the more beneficiaries there are in the will or other estate planning documents, the longer the estate administration process could take.
• Complex assets: Larger estates with complex assets can also prolong the probate process. Those who own complex assets, such as a home or small business assets, often include specific instructions in their wills on how to handle this property. And following these instructions to ensure the property is distributed correctly can take time.
• Disputes: Not many families expect to run into conflict during probate. However, when emotions are high after the loss of a loved one, it is easy for family members to fall back into old rivalries or disputes. And there is no doubt that disputes can make the probate process longer as well. 
• Will contests: Along the same line as disputes, will contests are often time-consuming as well, since they involve time to gather evidence and resolve issues through hearings. 

All of these factors can influence how long the probate process may take. However, the average duration of the probate process usually ranges between a few months up to a year. 

The thought of managing probate after losing a loved one can be overwhelming. It is often helpful for families to consult an experienced probate attorney to better understand their options for moving forward.

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Most individuals chosen to serve as the trustee of a loved one’s trust understand that they have a specific set of duties to fulfill.

Together, these responsibilities make up the fiduciary duty. Trustees have a fiduciary duty to the beneficiaries to act in their best interests while honoring their loved one’s wishes. However, there are many more elements involved in this duty.

Here is a brief overview of these elements.

There are several duties within a fiduciary duty

Trustees must separate their own personal interests from their responsibilities to uphold their fiduciary duties. To do this, trustees must also fulfill the following duties:

• The duty of loyalty: This is the most critical aspect of any fiduciary duty. Trustees must always act in the best interests of all of the beneficiaries. This requires trustees to eliminate any possible conflicts of interest they might have so that they can, essentially, act out of loyalty to the beneficiary.
• The duty of prudence: A trustee’s duty of prudence and duty of care often go hand-in-hand. It is often beneficial for trustees to understand finances so that they can handle the trust in an organized and effective manner. That is because the duty of prudence often requires trustees to take great care to administer a trust with caution and skill to avoid errors. Generally, this means that trustees should use the same care as they would if they were managing their own property.
• The duty of impartiality: Many California individuals might list more than one beneficiary when they establish a trust. If this is the case, trustees cannot favor one beneficiary over another regardless of any personal history or feelings between the trustee and beneficiaries.

All of these duties relate to how trustees must protect the beneficiaries’ best interests and rights. However, they also have a duty to preserve the property held within the trust.

Protecting the property is also critical

The duty to protect the property essentially serves the best interests of the beneficiaries as well, since they will receive the assets from the trust.

There are a few different ways that trustees can preserve the property, including:

• Following the instructions in the trust and securing the assets
• Keeping detailed records of the assets held within the trust
• Recording any investments made with the assets, if indicated by the trust
• Seeking the advice of licensed tax professionals to ensure investments are handled to the best tax advantage for the trust beneficiaries prior to distribution

Fulfilling these duties is critical. They not only protect the beneficiaries and the property within the trust, but they also help trustees reduce their liability if legal challenges should arise.

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