There are times when you will want to have a trustee who oversees your trusts. However, there are also times when you should consider not having a trustee at all.

Removing a trustee can be a good way to eliminate the possibility of trouble with your trust, especially if things are going wrong already. Here are three reasons to remove a trustee right away.

1. The trustee is self-dealing

Self-dealing is bad news for any trust. It is when a trustee uses assets that are not his or hers for his or her own benefit. This could negatively impact the trust.

2. Not complying with the terms of the trust

Another reason to get rid of a trustee is if he or she is not following the terms of the trust. If the trustee isn’t acting in the best interests of the beneficiaries, they have a right to petition the court to remove the trustee from power.

3. Hostility

In the event that a trustee becomes hostile toward the beneficiaries, it’s a good idea to remove him or her as the trustee, since he or she may no longer have the beneficiaries’ best interests at heart. If you wish to remove a trustee in this type of situation, you’ll need to petition the probate court and seek the removal of the trustee.

If you’re concerned about the trustee in control of your trust or the trust that is to benefit you in the future, remember that it is up to you to decide if you’ll ask to have the trustee removed.

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Did your parents leave unequal amounts to different family members in a will? Or perhaps they cut someone out entirely.

They do have a right to do this. It’s their will. It’s their estate. However, these decisions can have long-term ramifications. This one choice could cause a rift between family members that never heals.

An example: Aunts and cousins

A good example of this starts off with a woman whose father passed away when she was relatively young — a college student. She still talked to her grandmother, her father’s mother, and even visited a handful of times annually. She would call her grandmother on the phone during her younger years, though her grandmother’s deteriorating mental state made that hard as she aged.

The woman also had some cousins and aunts on that side of the family — her father’s sisters. They lived far closer to her grandmother and took care of her.

Initially, her grandmother kept the granddaughter in the will, essentially giving what would have been her father’s share to her. Her aunts also got their shares. The will was set up this way in 2007 and then reaffirmed in 2012. Her family would not get cut out of the inheritance just because her father passed away early.

Then, a week before her own passing, her grandmother allegedly changed her mind, cutting her father’s share out entirely. All the money went to the aunts.

This led to a long legal battle where the woman had to fight for what she thought of as her own share of the assets. Her aunts argued that they had been around, physically caring for the grandmother, and so she wanted the money to go to them, rather than younger relatives who lived farther away and didn’t visit all that often.

In the end, the woman got about $100,000, but she had to split it with her own siblings. It was also a small percentage of a multi-million dollar estate.

The cost of the entire ordeal was incredibly high on a relationship level: She and her siblings never talk to their father’s side of the family anymore. These are people they have known for years, whom they grew up with, but they do not speak at all. The aunts insulted her and said she was being greedy, while she felt like they maliciously worked to get her grandmother to take away her inheritance.

Your rights

You need to know that people’s true colors sometimes come out when their parents pass away. An unequal or unfair will could be an indicator of undue influence as family members try to undermine each other. This often happens with those who never expect it. Make sure you know all of your legal rights.

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The recent suicides of celebrity chef/travel documentarian Anthony Bourdain and fashion designer Kate Spade stunned the world, in part because they both seemed to have it all. They had something in common besides obviously not being as happy as they outwardly appeared to be. Both were separated from their spouses when they took their lives.

Many couples, for various reasons, decide to go their separate ways, but don’t divorce for a long time or perhaps ever. While Spade hadn’t spoken publicly about the state of her marriage, Bourdain had. He explained that he and his wife were focused on co-parenting their child. He said, “As a family, I think we’ve done a really good job and we’re doing a really good job and would like to keep it that way.”

These celebrity deaths raise the issue of the rights of estranged spouses when someone dies. If people are still legally married when they die, their spouses generally have all the inheritance rights of any spouse and control over the body and the estate — no matter how long they’ve been estranged and what the relationship is.

We know a bit more about the handling of Bourdain’s estate than Spade’s. Shortly after his death, his mother told the media that she didn’t know about the funeral plans because his wife was handling those. She said, “Although they are separated, she’ll be in charge of whatever happens.”

If you and your spouse separate amicably, you may be comfortable leaving him or her in charge of your health care directive, will, trusts and other legal documents that are part of your estate. You may be fine with your husband or wife handling your funeral arrangements. However, if you aren’t (and/or your spouse isn’t comfortable with you continuing to have these authorities), you’ll need to talk with your California estate planning attorney about making changes to your estate plan.

Even if you don’t want to make any changes, at least for the foreseeable future, it’s wise to notify your attorney of your separation so that he or she can advise you of any estate matters you may want to consider. It’s also wise to keep family members and others whom you’ve given authority over your estate informed of your decisions. This can prevent bickering and potential legal battles after you’re gone.

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As people get older, they often share their home with others. Sometimes these are family members or friends who help care for them so that they can avoid having to move into an assisted living facility. In other cases, they rent out a room or guest house to bring in some extra income. Some people maintain one or more rental properties in addition to their own homes.

Whatever the situation, if a loved one dies, you may be faced with the responsibility as the estate’s administrator of determining what will happen to these occupants — particularly if they are living in the home and have access to your deceased loved one’s belongings. As the person with responsibility for the estate, you need to safeguard those and the property as a whole. You may need to prepare the house for sale or to turn over to a beneficiary per the terms of the will or trust.

First, you need to determine whether the occupants have a legal right to live there. While a valid lease agreement would give them that right, they may be legal occupants even without a written agreement in place. For example, if the occupants were paying rent, they have what’s called a “periodic tenancy at will.”

If a property is part of a trust, the decedent may have stipulated in that trust that specific people are allowed to continue living in the home after his or her death. If that’s the case, the trust likely includes language about the occupants’ responsibilities for the property (like payment for utilities, maintenance and other expenses.)

Before you take any action, formally or informally, to get occupants out of a home after someone has died, it’s essential that you consult with the attorney for the estate. If your loved one didn’t have an estate plan or any other documentation like a will or trust, talk with an experienced estate planning attorney to help determine the best course of action available under California law.

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Probate can take a lot of time and cost your estate a great deal of money after you die. For this reason, many California estate planners seek to prevent some of their assets from going through probate before distribution to heirs.

One common way to bypass probate involves the creative use of death beneficiaries. Death beneficiaries allow the transfer of wealth from one person to another without the complexities of probate.

What are death beneficiaries?

Many financial accounts and insurance policies include death beneficiary designations. Estate planners must fill out these death beneficiary designations appropriately or the intended heir might not receive the funds contained in the accounts. Death beneficiaries allow heirs to receive certain assets directly without probate.

Here are several types of financial accounts that use death beneficiaries:

Payable on death accounts: These are bank accounts or other financial accounts that include special “payable on death” instructions. Most banks allow you to complete a form that names the beneficiary who can receive the assets in the account at the time of death. When this beneficiary presents the death certificate and appropriate identification, the bank will immediately transfer ownership of the funds to this person.

IRA and 401(k) accounts: IRA and 401(k) accounts will have death beneficiary designations. These designations could trump anything referenced in a will, so it’s vital that they are up to date and accurate at all times.

Transfer on death registrations: Sometimes it’s possible to transfer specific brokerage accounts, bonds and stocks to someone else upon death. Similar to payable on death accounts, by signing a registration statement, estate planners can declare who shall receive a specific security after they die.

Are your death beneficiaries up to date?

It’s important to understand how California estate planning laws apply to the death beneficiaries on your accounts. For example, do you need to mention specific investment accounts in your will, or do your death beneficiary designations cover the assets in those accounts sufficiently? By understanding the law and reviewing death beneficiary designations regularly, estate planners can ensure they are set up in a way that reflects your intentions.

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It seems as though comedians have taken an increasing large role in calling out issues that Americans need to know about. Whether you agree with a particular person’s political opinions or not, it doesn’t hurt to see if sometimes they might just be alerting you to something you need to hear about.

John Oliver does that regularly on his “Last Week Tonight” show on HBO. Just recently, he addressed a frightening reality for America’s rapidly-increasing senior population (sometimes referred to as the “Silver Tsunami.”) It involves court-assigned guardianships.

One of the many advantages of drawing up an estate plan is that you can detail who will be responsible for your finances, medical treatment and overall care if and when you become unable to care for yourself.

When people don’t make those stipulations and don’t have family members who are willing or able to assume the responsibility of looking out for the interests of an elderly, ill and/or disabled person, a judge can assign someone as a guardian. This could be someone completely unknown to the “ward” who’s place under the guardian’s care. Often, these guardians have responsibility for multiple wards.

These guardians are given access to people’s bank accounts, medical records and more. Not surprisingly, this can go horribly wrong, as the “Last Week Tonight” episode showed. The guardians appointed by local and state courts don’t have the necessary training to do their job. Not all guardians are trustworthy. Further, too many wards aren’t properly monitored. One audit found that over 3,000 wards listed as being under court guardianships were dead.

No one wants a stranger deciding what’s best for them or for a loved one. Even if you don’t have someone in mind whom you feel comfortable appointing to a position of authority like an executor, trustee or guardian, a California estate planning attorney can help you develop an estate plan that will codify your wishes and can also help you look at options for people who can see that those wishes are carried out.

Source: TIME, “No Plans for Old Age? John Oliver Suggests Making Tom Hanks Your Legal Guardian on Last Week Tonight,” Melissa Locker, June 04, 2018

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If a loved one died here in California owing money, it’s essential to understand how to handle creditors’ claims on the estate. These claims have to be filed within a year after the death of the person who owed money. If that deadline is missed, a creditor’s claim is generally unenforceable.

If the estate has to go through probate, the claim is filed during these proceedings. If no probate or other court proceedings are required to settle the estate, a creditor has the option to open one to make a claim.

If an estate goes through probate court, it’s personal representative is required to notify any creditors that they can reasonably be expected to find and provide them with claim forms within four months. Creditors then have a minimum of 60 days to make a claim on the estate.

Estate representatives have the discretion of accepting or denying all or part of a claim. Creditors whose claims are denied may choose to sue in order to get the money, however.

What happens if the value of the estate after all estate administration fees and court costs is less than the amount that the decedent owed to creditors? The debts are then prioritized according to California law. For example, secured debts such as mortgages take priority.

Estate administrators may find it worthwhile to delay the settling of the estate until a year has passed if the deceased owed a significant amount of money that would have to be paid from the estate. However, it’s always wise to seek the guidance of a California estate planning attorney when dealing with any debts left by a loved one who has passed away. This can help you avoid unnecessary expenses and legal ramifications.

Source: Lake County News, “Estate Planning: Claims involving a decedent’s estate,” Dennis Fordham, June 02, 2018

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If you are the executor of an estate going through probate your responsibilities can feel overwhelming — especially if you’ve never had to complete the process before. For one, you’ll be carrying a lot of weight on your shoulders, and if you make a mistake, you could be liable for your errors. Secondly, you might encounter various tasks that you don’t understand how to complete — such as navigating taxes, financial statements, real estate sales, property estimates and more.

In order to better familiarize you with the various responsibilities of an executor during probate, make sure you review the following list.

1. Obtain the original will

You’ll first need to locate the original will that was filed and signed by the decedent. Hopefully, this can be found in an obvious place in the individual’s home. The decedent’s attorney may also have a copy of the will. In addition, you’ll want to obtain any later re-writes of the will to find the most up-to-date version.

2. Begin the probate process

The executor will need to file several legal forms to officially begin the probate process. The executor needs to draft, execute and file these forms with the probate court.

3. Close up accounts

It’s important to cancel any bank or credit cards to ensure that no one tries to steal the decedent’s identity or make further charges on the credit cards.

4. Contact government entities and notify them of the death

The executor must notify appropriate government entities of the decedent’s death. This includes the IRS, Social Security and other entities. In addition, the executor must finalize the decedent’s final IRS filing.

5. Gather, estimate and take care of assets and liabilities

The executor must make a list of assets and liabilities that belong to the estate. If liabilities are outstanding, the executor will use the estate assets to pay them off. It may be necessary to liquidate certain assets to pay off outstanding debts.

If you’re confused about being an executor: Reach out for help

Many executors contract a probate attorney to help them navigate the complexity of the legal proceedings ahead of them. In some cases, a lawyer will take most of the above responsibilities off the executor’s hands. Ultimately, though, the more the executor knows about California probate law, the better equipped he or she will be at navigating the probate process.

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The role of a trust protector is basically what the term states — to protect the trust. Trust protectors became popular in the 1990s as offshore trusts boomed. However, now it’s considered wise for just about anyone who sets up a trust to have one.

For example, say you set up a living trust for which you’re the trustee for as long as you’re alive. Upon your death, the person you’ve appointed to be the successor trustee takes over the role. That person administers the trust and dispenses the assets as you’ve designated.

Of course, you’ve given considerable thought to your choice of a successor trustee and selected someone who’s reliable and honest. However, what happens if that person goes off the rails. Maybe he or she has developed a substance abuse problem that impacts decision-making. Maybe your successor trustee has had a falling out with one of your heirs and doesn’t want that person to inherit anything? Perhaps he or she is in extremely poor health and is unable to carry out the responsibilities of the job.

A trust protector can remove that person as trustee and (if you’ve given the protector the authority) appoint a new one. However, you have to be careful with your choice of trust protector. You don’t want someone who could end up working with the trustee to loot the trust. Just as you can appoint a corporate trustee, you can also choose a corporate trust protector.

When you are working with your California estate planning attorney to draft your living trust and other estate planning documents, it’s worthwhile to discuss having a trust protector and what responsibilities you want to give that person or entity. Your main priority is to do everything possible to ensure that your wishes are carried out as you’ve designated after you’re gone.

Source: Forbes, “Trust Protectors — What They Are And Why Probably Every Trust Should Have One,” Jay Adkisson, accessed May 30, 2018

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Shortly before her death this year, former First Lady Barbara Bush exercised her wishes for how she would spend whatever time she had left. In a public statement, Mrs. Bush, who had been suffering from pulmonary disease and congestive heart failure, said that she would “not…seek additional medical treatment and will focus on comfort care.”

Estate planning attorneys stress that designating whether you want medical treatment and life-prolonging measures to continue when there’s little if any chance of recovery is a crucial part of estate planning. As one California attorney says, “I think that, for Barbara Bush, she really wanted to feel at the end of her life loved and cared for, and she was able to remain in her own home.” She adds that “for many individuals as they become older this thought of having to go someplace else can [make them feel] incredibly trepidatious.”

However, according to one study, less than 30 percent of American’s have an advanced health care directive in place to designate their wishes for end-of-life care. That’s even less than those who have an estate plan at all (about 42 percent according to another study.)

Comfort care, widely known as palliative care, is defined as “specialized medical care for people with serious illness…focused on providing relief from symptoms and stress of a serious illness” by the Center to Advance Palliative Care.

Californians set up their advanced health care directive to detail their wishes regarding what medical measures they do or don’t want taken under various circumstances. Thanks to medical advancements, people’s bodies can be kept alive for a considerable length of time after they’ve lost cognitive function and the chance of ever being who they once were.

Many people don’t want to end their lives hooked up to tubes and machines, and they don’t want their families to go through the pain and expense involved in that. Your California estate planning attorney can work with you to develop an advanced health care directive that is right for you.

Source: WealthManagement.com, “Ten Planning Lessons from Barbara Bush,” Caroline Feeney, May 17, 2018

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