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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Like most, you do your best to provide your elderly parent (or parents) with the at-home care they need. With this approach, you hope that he or she will be able to remain in his or her home for as long as possible.

There could come a time when you have no choice but to consider the benefits of putting your parent in a nursing home. Although this is a difficult decision, you may have to take control at some point.

Since this is sure to bring forth a variety of challenges, make sure you have everything in order before you take the first step. For example, don’t hesitate to ask your parent’s family doctor if he or she can assist with the conversation. This will take some of the weight off your shoulders.

Here are some additional tips and advice to follow:

• Don’t make promises. You should never promise a parent that you won’t consider a nursing home, as you never know what will happen in the future. If you do this, it will complicate the situation should you have no choice down the road.
• Focus on providing the best possible care. If this means a nursing facility, you should move in this direction as quickly as possible. Your parent may not want to make the move, but you must help him or her do the right thing.
• Expect all sorts of emotions. Maybe you’ll feel some relief that you no longer have to provide care, 24 hours a day. At the same time, you may feel guilty that you had to make this decision.
• You can continue to help. Just because your parent is in a nursing home doesn’t mean you can no longer provide assistance. For example, you can still sit with your parent, help clean his or her room and make sure the right type of care is provided.

Putting your parent in a nursing home is never easy, but it may be something you have to do. Once you know which steps to take and how to make life better for your parent, you can take action.

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A thorough estate plan shouldn’t just reflect your wishes for what happens after you die. It should also include directions to those caring for you if you become so ill or incapacitated that you can’t speak for yourself.

That’s why an advanced medical directive should be part of your estate plan and those of your loved ones. In our state, it’s called a California Advance Health Care Directive. Sadly, only about 30 percent of Americans have such a document in place.

A health care directive lets people state the conditions under which they wouldn’t want medical care to continue to prolong their life. For example, if they were brain dead and there was no chance of regaining any meaningful quality of life. It can also state that they want all life-saving and life-prolonging measures taken, regardless of their condition and prognosis.

When you complete a health care directive, you will designate someone (known as an agent or proxy) to have health care power of attorney authority for you. Your health care proxy should be someone whom you know and trust to carry out your wishes — possibly against the objections of family members.

Physicians are not legally bound to carry out your health care directive. If a doctor has a conscientious objection to a patient’s wishes, however, he or she has an obligation to transfer that person to another physician who will comply. It’s best to discuss your wishes with your doctor and your designated health care proxy (and back-ups) to be sure that they feel comfortable carrying them out.

If your parents and other elderly loved ones don’t have a health care directive in their estate plan or don’t have an estate plan at all, talk to them about putting one in place. It can save families from having to make excruciating decisions for loved ones based on what they believe they would want. It can also prevent in-fighting at a time when family members need each other the most.

Don’t wait until you think you’re nearing the end of your life to draft a health care directive. The unexpected can happen at any age. You can always make changes to it if your wishes change as you get older and as medical advancements are made. An experienced California estate planning attorney can answer any questions you have and provide valuable guidance.

Source: San Diego Union-Tribune, “Do you need an advanced medical directive? Yes!,” Doug Williams, April 25, 2018

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When a loved one dies, it can be confusing and stressful to find out that they did not mention you in their will. As a close family member, e.g., a spouse or a child, you may qualify as an heir-at-law. This means that you may be able to inherit from their estate even if they do not mention you in their will or if they did not create a will at all.

However, just because you are considered an heir-at-law, it does not automatically mean that you will be entitled to anything, especially when your loved one has written a will without mentioning you. If you do wish to pursue claiming inheritance in this case, you will need to go through the process of contesting the will.

Contesting the will as an heir-at-law

You are only able to contest a will if you have legal standing to do so. This means that the law prevents members of the public from contesting a will. You will likely have legal standing if you are a child of the deceased person and were not mentioned in the will but your two siblings were named as beneficiaries.

In order to successfully contest a will, you must be able to prove beyond reasonable doubt that the deceased person did not intentionally omit you from the will, but that it was done because of one of several reasons. This could be that the deceased person was coerced by another to omit you from the will, or undue influence was used against him or her. Additionally, they may have intended to update the will to include you, and therefore you may be able to argue that the will does not reflect their final wishes.

It is important to remember that if a person has made a will, it can be difficult for an heir-at-law who has been omitted from the will to prove that they are entitled to assets. It is vital that you consider the reasons why you may have been omitted from the will, and whether you believe that you are able to contest the will in California.

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You and your spouse have worked hard all of your lives. You’ve given your kids everything they could have wanted and more. Unfortunately, because they’ve been so fortunate, they haven’t learned how to properly handle money. Saving hasn’t been a priority for them, nor has sticking to a budget.

You want to pass on your wealth to your children when you’re gone. However, you’re concerned that they’ll spend all of the money on frivolous purchases rather than using it as a nest egg for the future.

If you’re in this position, you’re not alone. That’s why spendthrift trusts were created. A spendthrift trust is managed by a trustee of your choice — either a corporate trustee or an individual — based on the provisions you designate. The beneficiary of the trust (your child) receives distributions from the trustee only as you’ve designated in the trust agreement.

Besides being able to control how your money is distributed to your children, a spendthrift trust also prevents creditors from getting any money that hasn’t yet been distributed. Therefore, if you leave your child $1 million in a spendthrift trust to be distributed in annual increments of $50,000 and he or she has managed to rack up hundreds of thousands of dollars in credit card debt, the creditor can’t come after the entire value of the trust — just what has been distributed to your child.

If you’re contemplating a spendthrift trust for your child or another heir, a California estate planning attorney can answer all of your questions and help you determine whether this would be the best choice for your specific situation as well as what you should look for in a trustee.

Source: The Balance, “How a Spendthrift Trust Can Protect Your Heirs From Themselves,” Joshua Kennon, accessed May 02, 2018

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When Californians don’t have an estate plan, there’s the chance that people whom they wouldn’t want to have any authority to administer their estate may petition to do so. The case of a former television actor is evidence of this.

Mark Salling, who appeared in the TV show “Glee,” hung himself earlier this year. This suicide came shortly before he was scheduled to be sentenced to up to seven years in prison on child pornography charges. The 35-year-old actor had pleaded guilty to possession of child porn. He was arrested in late 2015.

Salling’s ex-girlfriend petitioned the Los Angeles Superior Court to administer his estate. Her petition asked that she be given “limited authority (and) that she not have authority to take possession of money or property without a court order.”

The woman claims that the estate owes her $2.7 million for a settlement she reached with Salling. She claimed that he had forced her to engage in unprotected sex.

It has not been reported how much the estate is worth. In her petition, she stated that she didn’t know.

The LA Superior Court judge handling the case ruled that the woman had provided “insufficient” evidence that she had a right to act as an administrator of the estate. The judge did say that she could petition the court again if she chose to.

As part of his plea deal, Salling agreed to pay $50,000 to each of his victims. Since authorities reportedly found some 500 videos and 25,000 images in his possession, these could number in the thousands. However, it’s not certain whether victims who came forward could collect on that agreement since Salling died before he was sentenced.

Most Californians’ estates aren’t this mired in conflict. However, if you want a say in how your assets are distributed and who will oversee the process, it’s essential to put an estate plan in place. An experienced California estate planning attorney can provide important guidance.

Source: NBC 4 Los Angeles, “Judge Shuts Down Ex-Girlfriend’s Bid to Handle ‘Glee’ Star’s Estate,” April 12, 2018

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Debt has become such an enormous feature of many people’s lives that it is often overwhelming to consider how one might repay the debts of a person who passes away. In some cases, a person’s debt may significantly overshadow his or her estate, causing those who may stand to receive some portion of the estate to worry about how these debts may affect the estate’s dispersal of assets.

If you have concerns about the debts of a loved one, or worry that your own debts may keep you from leaving your property to those you love, it is important to understand the options available to protect your interests.

Debt does not have to sink an estate entirely, but it is always wise to understand the effects debt may have on an estate and how to protect the property within the estate from creditors or others with an interest in receiving payment.

Does debt die with you?

In general, debt does not transfer upon death, but that does not mean that it evaporates completely when a debtor passes away. Instead, debtors generally repay their debts out of their eta when they pass away, unless they created specific protections to avoid repaying debt upon passing away.

It is also possible that the debts of one person may transfer to another upon death if the other party is already legally liable for that debt in some form, such as a loan with two or more cosigners. If, for instance, you cosigned a loan to get your child a car, that loan is still viable if you pass away, and may simply transfer to your child entirely.

However, in most cases, debts do die with the borrower once they extract all they can from the debtor’s estate. This means that the property people own when they pass away must make good on debts associated with it before it can pass on to heirs.

Protecting an estate against debt

It is sometimes possible to protect your property against your debts by placing portions of your estate in a trust. Some trusts provide the opportunity to avoid probate and also shelter property from debtors who wish to collect repayment by removing the property from the ownership of the debtor, keeping it out of the reach of debt collectors and creditors.

If you hope to use these protections, do not wait to begin building your estate plan. The longer you wait, the greater the likelihood that you may simply never get around to it, leaving your assets and your loved ones vulnerable. Make it a priority to build proper protections to shelter the ones you love from the effects of debt and to make your wishes and legacy known.

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Just like parents who wouldn’t want anyone taking care of their children after they’re gone, you probably have some specific people in mind to take care of your pets in the event of your death. To make sure your animals end up in the right hands after you’re gone, you can incorporate your dogs, cats and other animals into your will.

The simplest way is to name a beneficiary who will receive your pet after you’re gone. Since the law views your animals as ‘property,’ it’s easy enough to bequeath your animals to a specific person. In addition to leaving this person your pet, you might also want to leave some money to this person, so he or she can use it to provide the highest quality food and best veterinary care to your animal.

If you want to make your pet arrangements even more formal, you can create a pet trust. Your pet trust will indicate who will receive and care for your pet, and it will also contain money to be used for your animal’s care. By naming the pet’s caretaker as the financial beneficiary and trustee of the money you’ve left your animal, you can include specific instructions that indicate exactly how the money you’ve left for your pet should be spent. You could also name another person as trustee, and this individual will be responsible for ensuring that your money is spent in the right way by the person charged with caring for your dog or cat.

Are you concerned about what will happen to your pet after you’re gone? There are a lot of options available for estate planners to ensure that their furry little loved one’s are well-taken care of long after they are gone.

Source: Bravo TV, “Don’t Leave Pets Out of Estate Planning,” Kristyn Pomranz, accessed April 18, 2018

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