People often put no-contest clauses in their wills because they don’t want their family members or others fighting over what they see as an unfair division of assets. These clauses may state that anyone who contests a will and tries to invalidate all or part of it is disinherited completely.

This can, understandably, make a family member afraid to contest a will, even if he or she believes that the deceased person was unfairly influenced by someone outside the family. However, if there is probable cause for challenging the will, the no-contest clause won’t be enforced.

What constitutes probable cause? Under California law, if a reasonable person would believe that the information known to the person contesting would make him or her be likely to prevail after further information is brought forward, the person contesting the will has probable cause.

Even if a person contesting a will loses in court, if the contest was considered to have a legitimate legal basis and been brought in good faith, he or she won’t suffer the penalties of a no-contest clause.

Only a couple of types of contests actually trigger the no-contest clause. One involves contending that the decedent had no right to the property he or she transferred in the will. This can occur in community property states like California.

The other involves claims that a decedent owed money to the person contesting the will if the no-contest clause specifies those types of claims.

No-contest clauses aren’t as all-encompassing as many people assume. If you believe that you have a valid reason to contest someone’s will, it’s advisable to talk with a California estate planning attorney who can help you weigh the pros and cons of doing so.

Source: The Press-Enterprise, “Best in Law: The pros and cons of the no-contest clause,” accessed Sep. 28, 2017

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Do you wish you could exert more control over the choices your child made in their lives and as they progress through adulthood? If so, you may find that an incentive trust can help ensure that happens.

These types of trusts have become increasingly popular among estate planning clients in recent years because of their ability to reward beneficiaries for living their lives in a certain way, such as engaging in positive behavioral choices,. The way this type of trust works is that the more the beneficiary lives in alignment with the benefactor’s desires, the more money the trust pays him or her.

When the beneficiary’s parents first draft the directives for the trust, it’s important for them to spell out their philosophy on life. The trustee is the actual one who enforces the parents’ directives and determines whether or not the beneficiary’s behaviors merit receiving a payout from the trust.

One example of a directive a parent may issue for the trustee is to never authorize a distribution that would make it unnecessary or unattractive for the beneficiary to discontinue working to support his or herself. This type provision captures why many financial planning experts liken incentive trusts to earned income. In this instance, a beneficiary is incentivized for making more money independent of the trust.

This type of trust has become increasingly popular in recent years as more parents of means are looking to ensure that their kids do not become spoiled and simply live off their inheritance. Parents see having a trust like this in place as a way to ensure that their child is encouraged to take a proactive role in making their way in the world.

There are instances in which life happens though. Your child may still be enrolled in school, come down with an illness or suffer a disability and be unable to work as much or in the way you hoped he or she would. Your child may even choose to volunteer or take a job in profession that pays poorly or is in a economically disadvantaged area. Fortunately, you can detail how you want the trustee to handle situations such as this when making distributions from the trust.

If you’d like to better understand the benefits of setting up a trust, whether incentive or some other type, then a Los Angeles estate planning attorney can answer any questions you may have.

Source: The Balance, “Do Incentive Trusts Work?,” Paul Spencer, accessed Sep. 21, 2017

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There is more to estate planning than understanding what will happen to your assets upon your death. Forget about this for a second and turn your attention to incapacity planning.

It doesn’t matter if you are thinking about your own future or assisting a loved one who is going through a tough time, you need to understand the finer details of incapacity planning, including how to make the tough decisions.

Incapacity planning is exactly what it sounds like. This allows you to prepare for a possible incapacity in the future, ensuring that your wishes are still carried out.

An example of this is the ability to specify who will handle your finances and personal affairs if you are unable to do so on your own, often as the result of a serious illness or injury.

There are many incapacity planning strategies to consider, including:

• Trust. This has a lot to do with the actual distribution of your estate after your death, but it can touch on all aspects of incapacity planning as well.
• Power of attorney. This is a written document in which you appoint a person to act on your behalf in the event of an incapacity.

It’s hard to think about a situation in which you may not be able to make your own decisions, but it’s something you need to do. Through the right approach to incapacity planning, you can feel much better about the future.

It doesn’t matter if you are thinking about your own situation or assisting a loved one – such as trying to determine if a parent should move into a nursing home – there are key details that require your full and undivided attention.

With the right approach to incapacity planning, you can feel better about a future that is full of uncertainties.

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Less than a year after the sudden death of Alan Thicke, the popular actor’s two sons are embroiled in a legal battle with Thicke’s widow over his living trust and the terms of his prenuptial agreement with his third wife. The 69-year-old, perhaps remembered by most people as the affable dad on the 1980s comedy Growing Pains, suffered a ruptured aorta while he was playing ice hockey in Burbank last December.

Thicke’s two adult sons are the co-trustees of a living trust that dates back nearly 20 years. One of them is singer Robin Thicke, perhaps best known for his hit single “Blurred Lines.” The two men allege in a petition to the court that their 41-year-old stepmother, Tanya, is trying to get more than the considerable amount left to her by her husband under the terms of their prenuptial agreement. The couple signed the legal document when they married in 2005.

The Thicke sons are asking the court to rule on the distribution of the trust assets, which include a ranch, to Mrs. Thicke and other beneficiaries. According to her attorney, however, the sons are using up the trust’s assets by taking legal steps, “attempting to tarnish Tanya’s name in the press” and “depleting their inheritances” in the process. He says that there’s nothing for a court to litigate.

Court papers filed on Mrs. Thicke’s behalf assert that the trust is “not yet in a position to be distributed.” The filing also claims that the sons “have not so much as even provided a proposed distribution plan, much less an accounting of the trust’s assets, to the beneficiaries or the court.”

The sons’ attorneys, on the other hand, claim that they’re simply trying to settle matters related to their stepmother’s challenges of both the prenup and the trust based on California’s community property laws.

Even carefully-drafted trust documents can face challenges in court when people believe that they aren’t getting what’s due them. An experienced California estate planning attorney can help trustees sort out the issues and determine how documents like prenups factor in. They can also work to protect the terms of the trust.

Source: MyNewsLA.com, “Alan Thicke’s sons trying to ‘tarnish’ stepmom’s name?,” Toni McAllister, Sep. 08, 2017

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Just because you prepare a will and other estate plan documents that are legally valid doesn’t mean that there won’t be conflicts among heirs, including siblings. If parents leave their home, for example, to just one of their children, the others may be hurt and angry.

In a letter recently published in The New York Times Magazine, a woman talked about the anger, accusations and threats of lawsuits she’d received from her older brothers after she alone was named the beneficiary of her mother’s home. The mother died after her daughter allegedly cared for her for many years. She claims her brothers were so angry that even when she offered to put the home up for sale and divide the profits with them, they would not speak to her.

In most states, parents aren’t legally required to bequeath property or other assets to adult children. (Of course, most parents try to provide for adult disabled children after they’re gone.) Parents can divide their assets among their kids as they choose, or leave nothing to any of them.

As long as the will was prepared properly, relatives and others who feel they’ve been left out probably don’t have any legal recourse. That’s why, in order to get what they want, they may turn to emotional blackmail and intimidation of the heir who received the bulk of the assets.

Stories like this show why it’s essential to discuss your estate plan with your grown children, particularly if you aren’t dividing your assets equally among them. You may have very good reasons for leaving more to one child than another. Perhaps he or she has cared for you for many years, for example, and you want to reward those efforts.

Whatever the reasons for the distributions you designate, you should discuss them honestly. This may be extremely difficult for you, but it can prevent conflict and estrangement among your children after you’re gone. Your California family law attorney can provide guidance for having these difficult conversations.

Source: The New York Times Magazine, “Mom Left Me the House. What Do I Owe My Brothers?,” Kwame Anthony Appiah, Aug. 16, 2017

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When it comes to inheritances and estate plans, if the person who dies creates a legally valid estate plan, then this plan — in conjunction with California law — will dictate the dispensation of the estate. It doesn’t matter if you’re the wife, the son or the lover of the decedent, you are not entitled to receive anything that the estate plan and the law do not assign to you.

That said, some people have the “feeling” that they should receive more than the will or estate plan offers them. Whether these individuals are aware of it or not, this feeling is often tied to the ancient notion of “birthright.”

What is birthright?

Birthright is an ancient biblical term that describes an individual’s inherent inheritance rights based on bloodlines, the sex of the individual, the birth order of the individual and family ties.

Here are several definitions of birthright:

• The assets or special privileges that an individual possesses — or has the right to receive — by virtue of his or her birth.
• The special privileges or assets to which a first-born son is entitled.
• Your inheritance rights by virtue of the family into which you’ve been born.

Inheritance isn’t about birthright anymore

The traditional and ancient notions of “birthright” no longer work in modern society. That’s because we have federal and state intestacy laws that govern the dispensation of estates belonging to individuals who die without a will. If your deceased family member has taken the time to complete a will and/or estate plan, this plan will dictate how the wealth and assets of the estate shall be distributed to others.

If no will is on file, intestacy laws will determine who receives what. If a family member’s notion or feeling of what he or she should receive does not fall into alignment with the estate plan — intestacy laws if no plan exists — it is not likely that the individual will receive what he or she wants, no matter how much litigation is involved.

Learn more about intestacy law, California estate law and determine your legal right to inherit assets and money following the death of a close relative.

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One of the more common estate planning questions that clients ask about trusts is whether their home can be placed into it. You can continue managing your assets if you place them into a family or living trust. However, there are certain conditions that must be met to do so.

If you or your spouse have the mortgage loan in either one of your names, then it’s important to know that your repayment obligation won’t be able to be transferred into the trust. While you’ll be eligible to continue to claim a property tax and interest deduction if you choose to do so, you’ll be required to continue to personally back the mortgage loan yourself.

With a family trust, a grantor often chooses to put their home into it as a way of ensuring that their beneficiaries won’t have to endure a lengthy probate process or pay hefty taxes after they die. It also protects the property from having liens placed on it by unsecured creditors.

By creating a family trust, a grantor can feel more confident that a lender will allow the property to be transferred to them so that they continue living in it without a hassle. While banks tend to frown upon homes being placed into trusts, they ultimately tend to allow it, so long as the mortgage payments continue to be paid.

If the trust is revocable, it means that the grantor can change the beneficiaries of the transfer of the home as they please. While an irrevocable trust may provide a grantor with more of a tax break, making modifications to their beneficiaries or terms is not as easily done.

While most lenders recognize the transfer of a mortgage into a family trust as not triggering the ‘due on sale’ clause, it just might. That’s why it’s important for you to communicate with the mortgage company prior to transferring your home into the trust and to get their response put in writing. Doing so will avoid you potentially having the mortgage placed in default status if they happen to impose the clause down the road.

If you’re looking to place your home into a trust or simply have questions about how creating a trust may be beneficial for you and your heirs, a Los Angeles estate planning attorney can help.

Source: SFGate, “Can You Put a Home that Has a Mortgage in a Family Trust?,” accessed Sep. 01, 2017

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One of the last things that you might want to deal with when your loved one dies is having to handle a probate issue. Many people these days leave behind estate plans that let other people know their wishes for their property.

There are times when someone is going to decide that he or she doesn’t think the will is correct. They might feel that someone coerced the person into making provisions in the will that the decedent really didn’t want. They might think that the person wasn’t in his or her right mind when he or she created the will.

We understand that these are some of the situations that you don’t want to have to deal with. It might infuriate you to think that someone is questioning your loved one’s final wishes. Even though this might be the case, you must still take proper action to help to rectify the situation.

First, you need to remember that this is your family that you are dealing with. Ultimately, the contents of the will aren’t likely going to matter if you lose your family.

Second, you must find out about the legalities of the situation. Does the person have a valid reason to contest the will? Does the person have a qualifying relationship to the decedent? Are other applicable conditions of a will contest met?

We can help you to figure these points out so that you can determine what options you have. Learning your options can help you make a decision about what you are going to do to get the situation handled in the way you feel is most appropriate.

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When it comes to your parents’ home, you might think that you have a natural right to live there, even after they pass away or become incapacitated. While this usually does not cause a problem, in some cases, a parent’s home may pass ownership to someone else who does not wish for you to live there.

If you do find yourself in conflict with the new owner of a parent’s home, whether he or she is one of your other family members or some other person who now owns the home, you must consider your next few steps carefully.

Legally, you do not have the right to live in a home simply because your parent owned the home before he or she passed away. Depending on your parent’s estate planning (or lack of estate planning), the home may now legally belong to someone who does not want you to live there.

Can I contest my right to be in the home?

In broad strokes, yes. However, depending on your relationship to the new legal owner of the home, your mileage may vary, so to speak. A wise place to start is usually to consult with an experienced planning attorney who understands the intricacies of contesting wills and other estate documents in California.

If you are very lucky, you may find a way to resolve the issue without using the legal system. If, for instance, you have a sibling who received the home legally after your parent passed away, he or she may listen to reason and allow you to continue to live there.

However, it is important to understand that the nature of your relationship to the property changed when your parent passed away, and if you live in the home now, you are essentially a tenant.

As a tenant, you may face eviction for any number of legitimate reasons, so defining the terms under which you continue to live in the home is crucial. You certainly don’t want to give the home’s new owner a reason to evict you.

How can an attorney help me?

Estate laws in California are complicated, so it is not possible to know exactly where you stand legally without examining the details of your particular circumstances. However, a skilled attorney can represent your rights and explore way that you can plead your grounds for remaining in the home.

If you face legal action, an attorney can provide a professional legal response that keeps your priorities secure while using the strength of the law to ensure that your parent’s house can remain your home if at all possible.

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There’s more to developing an estate plan than preparing all of the necessary documents with your attorney. If you’re leaving a considerable amount of money and/or other assets to your children, it’s important to talk with them about handling the wealth that they will one day inherit.

Few people are comfortable with talking about money, let alone what will happen when they die. That’s why it’s best when this can be done in a relaxed atmosphere, such as during a family vacation or over the holidays.

You may not want to specify in your will just how you want your adult children to spend the money you leave them. However, you can and should share with them what kind of legacy you hope they’ll use their inherited wealth to carry on. If you’ve been sharing your values with them their entire lives, none of this information should be news to them. However, it’s important that they know your expectations that they’ll carry your values into the future.

It’s also important to go over some key points about your estate plan and documents, at least with the person who will be handling your estate, if it’s one of your children:

1. Review your “balance sheet” of assets and debts.
2. Tell them where all of your estate documents are located.
3. Provide them with your estate planning attorney’s information and that of any financial and tax professionals they may need to speak with.
4. Make sure that they have a list of all of your accounts, companies and individuals they’ll need to contact and any passwords they will need.

You may be leaving significantly different amounts to your children or perhaps placing one or more of these children’s assets in a trust. In that case, it may be best to talk with each one separately. If you need any advice regarding how to have this talk with your children and what information to provide them, your California estate planning attorney can help you.

Source: Forbes, “Don’t Let Your Kids Squander Your Wealth – Start Talking To Them,” Rob Clarfeld, Aug. 07, 2017

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