An advance health care directive is one of the most crucial elements in your estate plan. Even if you don’t have a full estate plan in place, by having this document, you can let your medical providers know about your wishes regarding what measures you want taken (or not taken) to keep you alive if you suffer a serious injury or illness and are unable to speak for yourself.

However, this document should not just be drawn up and stored away in a locked desk drawer or a safe deposit box that no one else can access. It needs to be available to the appropriate people should the need arise. If you have a close encounter with an overly-friendly giraffe on a photo safari in Africa and end up in the hospital in a coma, an advance directive locked in your safe in your Los Angeles home isn’t going to give the doctors any direction if no one can get to it.

Following are some tips for what to do with your advance health care directive once you and your attorney have completed it:

• Make multiple copies.
• Put one in a safe place in your home, and let family members and/or the administrator of your estate or other fiduciaries know where to find it. Make sure they can access it.
• Keep a copy with you when you travel.
• Give a copy to your doctor(s) to keep on file and possibly to your local hospital.
• If you have a pastor or priest, give them a copy.
• Consider scanning the document so that a digital copy is available even if you lose all of your paper copies in a fire, flood or earthquake.

Your estate planning attorney may have other suggestions for people who should have a copy of your directive based on your individual circumstances. They will keep a copy on file. However, if you’re in a situation where no one knows who your attorney is, that won’t help you.

It’s also important that you revisit that document (and your entire estate plan, if you have one) periodically. You want to make sure that it still reflects your wishes.

Posted in Estate Planning | No Comments »

Admitting that the health and abilities of your loved one is deteriorating can be hard to do. However, when a person is suffering from ill health more frequently or they are having falls often, it may be time to explore the best interests of your loved one.

Family members often believe that they can care for their loved one from home. While this can be a viable option for a certain period of time, if the health of the elderly person worsens it can be a very stressful responsibility that can become a 24-hour job.

Why do so many people avoid putting their loved one in a nursing home in California?

Many family members have a connotation of anxiety and guilt linked with the decision to put their loved ones in a nursing home. They might believe that in doing so they would not be doing enough for their parent or spouse.

It’s also common for people to think of the worst case scenario and be worried by things they have heard about certain facilities. It’s probably that many think they could do a better job at understanding their loved one’s needs than the nursing home workers could, and that they could do a better job at making them feel comfortable.

When will I know if it is the right time to put my loved one in a nursing home?

There can be times when the decision to choose nursing home care is obvious. This could be when the primary caregiver passes away or when an illness was sudden or rapid. When deterioration happens slowly, however, it can be more difficult to draw the line.

Many family members feel better about making their decision when they have taken the time to look around different nursing homes and meet the staff. Often, after these visits, they feel confident that they are making the best decision for their loved one.

If you are considering nursing home care and the different choices for your loved one, it is important to take the time to understand the implications it will have.

Posted in Trustees Executors & Fiduciaries | No Comments »

Your mother named you the executor of her estate. She had a detailed estate plan when she died. However, she hadn’t gotten around to updating her plan to take into account some issues that arose after the plan was put in place.

For example, your brother has developed a serious drug problem. You’re concerned that he’ll use the many thousands of dollars she left him in a trust to buy drugs and further harm himself.

Can you go against the wishes she detailed and do what you’re confident she would have wanted? Here in California, thanks to a new law, you can take steps to do that.

The Uniform Trust Decanting Act was passed by the California Senate and approved by Gov. Brown just last month. The law changes the California Probate Code to allow fiduciaries to “decant” irrevocable trusts — modify the terms — “without the consent of the beneficiaries or approval of the court, subject to certain exceptions.”

The new law allows executors and others placed in charge of an estate to amend portions of the plan in light of changed circumstances that the deceased didn’t anticipate to reflect what would have been that person’s wishes.

This kind of situation highlights why it’s important to review your estate plan regularly and make changes as necessary. However, many people don’t do that for a variety of reasons.

If you believe that a loved one’s estate plan needs to be “decanted,” it’s essential to talk with an experienced California estate planning attorney. They can advise you about whether this move would be appropriate given your specific circumstances, and if so, guide you through the process to carry out the wishes of your loved one.

Posted in Estate Administration | No Comments »

People have all sorts of reasons for postponing their estate planning. Unfortunately, too many people postpone it for so long that they die without any estate plan in place — even a simple will. They don’t intend to, but they leave their family members with the stressful, time-consuming and often expensive task of dealing with their assets and debts in probate court.

Many people avoid putting an estate plan in place because they just don’t want to think about death. Some may even believe that by planning for it, they’re tempting fate. Of course, there’s no avoiding it.

Others just believe that death is many years or even decades away. They’re healthy, so they see no reason to think about it at the moment. Unfortunately, car crashes and other suddenly fatal events happen to people of all ages every day.

Maybe that’s not how you operate. You acknowledge that you’re not going to live forever and that you can never be sure when your time will be up. However, you don’t believe you have enough assets to warrant an estate plan. Most Californians don’t consider what they have to be an “estate.” However, when you start totaling the value of everything you have — your home, bank accounts, retirement and investment accounts and jewelry and other valuables — they likely add up to more than you realize.

Another reason not to postpone putting an estate plan in place is the need to make arrangements for what will happen if you become physically and/or mentally incapacitated. What if you become seriously ill or injured and are unable to handle financial matters or make your wishes known regarding your health care? Documents like durable powers of attorney and advanced health care directives allow you to do this.

Yes, estate planning takes some time and requires contemplating a future when you won’t be around. It also requires spending a little money. However, it allows you to take control of what happens to your assets, determine the legacy you want to leave and help make things a little easier for your loved ones during what will be a difficult time for them.

Posted in Estate Planning | No Comments »

It’s nothing you look forward to, but there may come a point when you need to choose a nursing home for a loved one. For example, an elderly parent may require care after surgery or for the rest of their life.

Regardless of where you live, you’re probably familiar with a few nursing homes in your local area. While anyone can choose a facility, you don’t want to make a rash decision that could result in additional stress in the future.

There are many steps you can take to choose the right nursing home for a loved one, including the following:

• Know what’s most important: Some people search for a nursing home based solely on the quality of care, while others are more interested in things such as religious connection and meals.
• Ask around: You may be surprised to find that many people in your life have been in the same position as you. Take the time to ask others, such as friends and coworkers, if they have any nursing home recommendations.
• Visit in person: Even though you can learn a lot about nursing homes online, there is no replacement for visiting in person. This gives you a clear idea of what the facility has to offer, ranging from the support staff to the quality of the food and much more.
• Ask questions: If there is anything on your mind, don’t hesitate to ask questions. The best nursing homes are more than willing to address your concerns and put your mind at ease. Conversely, if a particular facility doesn’t want to answer your questions, they may be hiding something.
• Read the contract: Before moving your loved one into a nursing home you should understand the contract, including the type of room they’ll stay in, payment and other related details.

Choosing the right nursing home for a loved one doesn’t have to stress you out. It’s not easy to do this, but with the right approach, you can make a confident decision in a timely manner.

As you’re going through this process, don’t hesitate to communicate with your loved one about their elder law and estate plan. It’s important to make sure every last detail is in order, as this helps you protect their legal rights.

Posted in Trustees Executors & Fiduciaries | No Comments »

As we discussed in a recent post, Aretha Franklin, despite her considerable wealth, age and poor health, died without an estate plan in place. It might be surprising, then, to learn that when 26-year-old rapper Mac Miller died earlier this month, he had an estate plan. In fact, it was reportedly similar to the one Michael Jackson had when he died in 2009.

Miller, whose real name was Malcolm McCormick, is suspected to have died from a drug overdose. However, that hasn’t yet been confirmed by authorities.

Miller reportedly had his estate, which is estimated to be worth some $9 million, in a revocable trust for which he was the trustee. Revocable trusts are common in California estate plans for celebrities and noncelebrities alike. One estate planning attorney describes this type of trust as a “will in a different form.”

Among the many advantages of a revocable trust is that it helps keep the estate from having to go through probate. California probate proceedings can be challenging for loved ones and others administering an estate. Because it stays out of court, the privacy of the estate and the deceased are protected. Although the rapper is believed to have left everything to his parents, that may never be known.

When Californians set up a revocable trust, they generally place most of their assets, including their home, in the trust. They have control over it while they’re alive and can add or remove assets as they choose. Assets placed in a trust, like homes and bank accounts, have to be titled to reflect that they are owned by the trust.

One estate planning professional says, “What impresses me about this guy [Miller] is, he’s single, young, has no kids, and yet took the time to do this. Really rare for anybody, no less someone who’s an artist in the music industry.”

Whether you already have an estate plan in place or you’re just starting to think about it, it’s worthwhile to learn whether a revocable living trust is a wise component of that plan. Your California estate planning attorney can provide information and guidance based on your own unique situation.

Posted in Estate Planning | No Comments »

No one wants their family to fight over their assets after they’re gone. However, even when there’s an estate plan in place, family members and other beneficiaries (or people who believe they were left out) may try to dispute the will and other documents in court.

One Los Angeles attorney says that in 90 percent of estate contests, none of the warring parties comes out ahead. Their legal costs may exceed whatever assets they managed to get reallocated to them.

If you know the family dynamics that commonly give rise to estate plan contests, you can determine which ones apply in your case and work to minimize the chances of legal disputes after you’re gone. For example, have you remarried later in life? Have your children’s sibling rivalries continued into adulthood — perhaps exacerbated by what they’ve perceived as preferential treatment by their parents? Have you become estranged from one or more of your kids?

If any of these situations apply, you’ll likely need to take additional steps to help your family understand your estate planning decisions. They also need to feel comfortable that you haven’t been unduly or unknowingly influenced in your decisions by a new spouse, caretaker or another person in your life.

Even if your family has no grounds to challenge the estate plan in court, that doesn’t mean that there won’t be conflicts in the administration of the estate. These conflicts can drag out the process, cost money and create hard feelings at a time when family members need each other most.

Your estate planning attorney can help you take steps to avoid disputes over your estate after you’re gone. It’s essential for people to be honest with their attorneys about their family dynamics. Sometimes, people are embarrassed to admit that their kids don’t get along, no one likes their new spouse or they have a child with a substance abuse issue that they’re concerned about leaving money to.

Los Angeles estate planning attorneys have heard it all. Their job isn’t to judge but to help you ensure that your wishes for your estate and your family are carried out when you’re no longer around.

Posted in Estate Planning | No Comments »

Most people would assume that someone as wealthy and successful as Aretha Franklin would have had a detailed estate plan in place when she passed away recently. However, the “Queen of Soul” reportedly died without even a will — let alone any other documents detailing how she wanted her assets divided among her family and others.

The same happened with another music icon — Prince — when he died two years ago. Reportedly, his estate has still not been settled.

As one San Diego estate planning attorney notes, Franklin’s lack of an estate plan means “the court will ultimately decide who receives [her] property, in a process that is expensive, time-consuming and public.” Requiring your loved ones to deal with your estate in court — even out of the public eye — can put them in conflict with one another and only add to their pain and grief. Unfortunately, fewer than half of those living in the United States have an estate plan.

Many people don’t think that they have an “estate” that requires a plan. However, state law sees it differently. In California, an estate is required to go through probate if the deceased owned over $50,000 in real estate or had total assets and property totaling over $150,000. If you never detailed your wishes, the court will make decisions about your estate based on state law.

Detailing how you want your assets and property disbursed after you’re gone is just one aspect of estate planning. You can and should use your estate plan to designate people to have power of attorney to make financial and health care decisions and the authority to see that your wishes are carried out as you’ve designated. This may be necessary even while you’re still alive if you become incapacitated and unable to speak for yourself.

While it’s natural to resist having to think about what will happen after we’re gone, by taking the time to do so while you’re alive and reasonably well, you can save your loved ones money, time and stress. An experienced California estate planning attorney can help you craft a plan that is appropriate for you, your loved ones and the legacy you want to leave behind.

Posted in Probate | No Comments »

When your loved one creates a will, or even if you create one, one thing that can’t happen is for changes to take place after you lose testamentary capacity. If you’ve never heard of this before, it simply means that you can’t make changes to your will or other estate documents if you’re not mentally sound.

This is a protection that prevents people from taking advantage of you during time of confusion. It also helps prevent changes due to hallucinations or confusion. Testamentary capacity is necessary for anyone to change a will or estate plan.

One of the major reasons people lose testamentary capacity is dementia. Dementia is not a specific disease but rather a kind of catch-all phrase that describes a decline in mental abilities. The decline is so significant that it interferes with a person’s daily life. Not all symptoms of dementia occur in the same order or the same way, sometimes making it difficult to diagnose.

What’s the most common form of dementia?

Alzheimer’s disease is the most common form of dementia in the United States. It accounts for dementia in approximately 60 to 80 percent of cases. A person who develops Alzheimer’s disease doesn’t automatically lose testamentary capacity, but over time, if the decline in memory and thinking skills because too significant, the person can have their testamentary capacity questioned or revoked.

What are some signs that a person might be at risk of losing testamentary capacity?

There are many signs and symptoms to watch out for. The primary worry is that a person’s memory will fail. Combined with confusion, this could mean that it’s easier for others to take advantage of your loved one. Additionally, your loved one may not fully grasp the implications of certain actions. This is why they’re often no longer able to make decisions for themselves.

What should you do if a loved one can no longer make sound decisions?

At this point, it’s wise to talk to their attorney and medical provider. At some point, the medical provider will be able to determine if your loved one is in a position to make decisions any longer. If not, then someone make take over that role, fulfilling the duties of a power of attorney. When that happens, the elder will no longer make decisions or be able to be taken advantage of or manipulated by the people who surround them each day.

Posted in Trustees Executors & Fiduciaries | No Comments »

Marijuana has been legal here in California for medicinal purposes since 2004. At the beginning of this year, its recreational sale and use was legalized. Therefore, many Californians engaged in cannabusiness, who are sometimes known as “ganjapreneurs,” have accumulated considerable assets.

However, leaving those assets to family members and other heirs when they die can present some complications that other types of business owners don’t face. Californians involved in this business have had to operate under complicated and ever-changing laws and regulations over the past 14 years. Some people involved in the cannabis business haven’t kept their earnings in traditional bank accounts.

As one California attorney notes, “There’s a good chance that people have more assets than they realize, and creating a trust is critical to avoid the costly, public and painful probate process if you have assets valued at over $150,000 and no plan or a simple will in place.” Any estate that exceeds that amount in California is required to go through probate.

The attorney, who has branched out into estate planning from criminal law, says, “If you don’t have a plan in place, the State of California has a plan for you, and I can guarantee you it is not a plan you will like.” In addition to planning for your death, it’s also important to have a plan should you become incapacitated, including a living trust.

As another attorney notes, “The most foundational level of asset protection begins with planning for what will happen to your assets in the event of your incapacity or death because you are 100 percent guaranteed to have one or both of those happen to you.”

With a carefully-crafted estate plan, Californians can take steps to avoid or at least minimize the complications involved with probate and ensure that their wishes are carried out when they’re no longer around or able to speak for themselves.

Posted in Estate Planning | No Comments »