In many California homes, multiple generations of a family live under one roof. Young adults may move back in with their parents for a time after college until they can afford a place of their own. As people live longer, baby boomers are taking in elderly widowed parents so that they don’t have to live alone or move to an assisted living facility. With the high cost of owning property in Southern California, at some point, it may be a financial necessity for parents, grandparents and adult children to share a home.

Sometimes, seniors may not want to give up their homes, but may not be able to care for or navigate a large multistory home. They may let children or grandchildren move into the home while they keep a small section of it for themselves.

“Mother-in-law suites” are becoming popular. These are separate living spaces (also known as accessory dwelling units or ADUs) within a home or at least on the property that allow people to live with their families, but still have some privacy and the ability to come and go as they please.

When multiple generations of a family are so closely connected and financially dependent on one another, it’s essential for their estate plans to reflect that. Multigenerational estate planning is key to helping ensure that parents and children are cared for and financially solvent after you’re gone.

It’s essential to determine how this real estate that’s being shared will be divided when one or more of the people who own it pass away. Planning for the future is key. Your California estate planning attorney can help you develop a multigenerational estate plan to provide your loved ones with the quality of life you wish for them even when you’re no longer around.

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Most California wills go through probate without any challenges. However, there are some grounds on which family members, heirs or others who believe they should have been included in the will can challenge them.

One of the most common reasons for a will challenge involves the decedent’s testamentary capacity. Under the law, people who have testamentary capacity are able to understand:

• What a will and other estate documents mean
• What it means to dispense their assets via the will and other documents
• What property and other assets they have and their value
• That they are using the will and other documents to distribute their assets
• The people they’re expected to include as their beneficiaries

This capacity is usually challenged on the basis that the person who made the will (the testator) was suffering from dementia, senility or some other condition that impacted that person’s ability to understand the consequences of his or her decisions. Alleged substance abuse may also be a reason to challenge a person’s testamentary capacity.

Sometimes claims of lack of testamentary capacity involve allegations of undue influence on the testator. A family member, for example, may claim that an elderly person was persuaded by a caretaker, new spouse or someone who found their way into the person’s life near the end to change their will to leave money to them rather than their family members. The person challenging the will may argue that the testator wasn’t aware of what he or she was doing or perhaps felt intimidated or threatened into making the changes.

The prospect of challenging a will or other estate documents can be expensive, lengthy and stressful. It has the potential to cause conflict in a grieving family.

However, if you believe that a loved one’s will or any part of the estate plan doesn’t reflect his or her wishes and intentions, you will need to weigh both sides to determine your best course of action.

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When someone loves you and trust you, he or she may be willing to entrust you with important responsibilities. That could include naming you as the executor of one’s estate in the last will or estate plan. Typically, people tend to discuss this decision with family members and loved ones before committing it to paper. However, it does happen that people find out after the death of a loved one that they were named executor.

Regardless of whether you have had years to prepare for this role or just found out about it after the death of someone you were close to, there are steps you can take to protect your role and the estate involved. Being proactive in handling the estate can cut down on issues, like a challenge that could drag you and the estate into probate.

Make sure that you understand the wishes of the deceased

The single most important elements in proper execution of someone’s last wishes is taking the time to actually understand those wishes. Typically speaking, testators will leave behind explicit instructions about how to disperse their assets after their death. Sometimes however, the language used may be confusing or you may not understand which assets the last will refers to.

In a situation like this, your best option is to seek additional information. Reaching out to the attorney who helped draft the document could shed light on the intentions of the deceased. Alternatively, you may need to discuss unusual terms or assets with family members who can point you in the right direction.

Document everything and get receipts for each item

While you may feel confident that you are complying with the wishes of the deceased, you need to make sure that you properly document everything you do. Without documentation, you cannot prove that the right people receive the right assets. More importantly, other family members could accuse you of improper use of funds when, in reality, you are paying household bills on behalf of the estate.

You should maintain written or electronic receipts for every transaction you undertake as executor. You should also invest in a receipt book so that heirs can sign off on any physical items that they receive from the estate. Otherwise, you could face claims of taking physical objects or giving them to the wrong person. A physical, signed receipt helps you prove who received what from the estate.

If someone does choose to challenge your position, taking these two steps can help you defend your role as executor. Showing that you took the time to properly interpret the last will is important. Additionally, documentation can help establish that you have, in fact, performed your duties as required by California law.

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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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