Many Californians don’t consider developing an estate plan until they have a child. Then, the primary consideration is often who will be that child’s guardian(s) should both parents pass away or be unable to care for their offspring.

That’s certainly not something that anyone wants to consider, but it could happen in the blink of an eye in a car accident, plane crash or other catastrophic event. Even if you have parents and siblings who love your children and would make good caretakers, by failing to codify that, your loved ones could well end up in court fighting to be appointed guardians.

Naming a guardian isn’t about choosing your best friend(s). They may be fine people, but would they raise your children with the values you want them to have? It may be a good idea to avoid each of you naming your best friends as co-guardians. (See the romantic comedy “Life as We Know It” for an example of how messy that can be.)

Once you’ve decided on the people to whom you want to entrust your child, it’s essential to talk with them and make sure that they are agreeable to this. It’s not the same as being a godmother or godfather. It’s a legal commitment to raise a child.

The other thing you need to do when developing a will or estate plan to ensure that your child is cared for is to set aside money for that care and perhaps for the child as he or she gets older. This is generally done via a trust. No matter how much faith you have in your designated guardians, you can and should place stipulations on what the trust money can be used for.

For people who have never dealt with a will or any kind of estate planning, this process can seem daunting. However, experienced California estate planning attorneys can guide you through the process and help you make sure that your new baby’s future is as secure as possible if anything happens to you.

Source: Morningstar, “Estate-Planning Musts for New Parents,” Christine Benz, accessed June 27, 2017

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A debilitating injury or illness can occur at any time, even to young and seemingly-healthy people. When people are no longer able to look after their own interests, whether due to dementia or some other condition, and they don’t have an estate plan designating someone to do so in their stead, it may be necessary to set up a conservatorship.

Obviously, as estate planning attorneys, we recommend that people have an estate plan in place to ensure that their wishes are carried out and to save their family unnecessary costs, time and stress. However, if that hasn’t been done, we can assist you with initiating conservatorship proceedings.

Under California law, a judge has to agree that the “conservatee” is unable to care for him- or herself. This often requires evidence submitted from a doctor and possibly a psychiatrist regarding a person’s physical and/or mental capacity.

At The Probate House L.C., we understand that seeking a conservatorship for a loved one is a painful process. We help people here in California as well as the rest of the country when their loved one lives here in our state.

Ultimately, the goal for those who seek a conservatorship for a loved one as well as for the court is to protect the conservatee from financial as well as other types of abuse. If you become a conservator, you will need to file a care plan, and the conservatorship will be monitored by the court.

Someone does not have to be elderly or incapacitated for a court to approve a conservatorship. Pop princess Britney Spears’ financial life is reportedly still controlled by a conservatorship with her father at the helm after some troubling public behavior a decade ago.

At The Probate House L.C., we can provide experienced legal guidance based on California law, regardless of the circumstances. Review our website for more information on our estate planning services.

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Creating an estate plan can be a challenging process. This is even more so the case if you have a child who is under the age of 18.

If you find yourself in this situation, you need to ask yourself a very important question: Who will care for the child in the event that you and your spouse pass away? This is not something that anyone wants to think about, but it’s the responsible thing to do.

Here are several tips to follow when it comes time to choose a guardian for your minor child:

— Make a list of potential options. You don’t want to overlook the right person, so it’s a good idea to list out each and every person who may be able to serve as a guardian. You will only choose one, but it all starts with a comprehensive list.

— Learn more about the person’s values. What values does the person have? Do you want these to be passed along to your child? These are the types of questions that can lead you toward the right guardian.

— Financial stability. You don’t want to choose somebody who lacks the financial resources to care for your child. As you know, raising a child is not cheap. The person you select as guardian should be financially stable, as expenses will arise time and time again.

— Talk it over with your choice. It is one thing to say that you want to name someone the guardian of your minor child. It is another thing entirely for this person to agree. You should talk about the finer details before finalizing this in your estate plan.

These are just some of the many tips you can follow when it comes time to choose a guardian for your minor child.

Since this is one of the biggest decisions you will make with regard to estate planning, don’t hesitate to consult with an attorney. This can go a long way in putting your mind at ease and allowing you to realize that you are on the right track. If you have any questions or concerns, you know your attorney can step in and address them in a timely manner.

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The probate process is one that many people find difficult to handle when their loved one passes away. While there are some cases that involve wills and other estate planning tools, some people pass away intestate.

A loved one who dies intestate doesn’t have a will or estate plan in place. This means that the loved ones who are left behind would have to determine where everything goes. However, all of this must be in accordance with the intestate laws. Here are some points to know if your loved one died intestate.

Asset limits in California

When a loved one passes away intestate and the estate meets certain requirements, you will have to go through the probate process. In California, the small estate limit is $150,000. If an estate is below this amount and 40 days have passed since the person’s death without anyone coming forward to claim part of the estate or to challenge the successor, the assets will go to the successor without having to go through the formal probate process.

The laws determine what happens

Many people get stuck on thinking that the concept of birthright rules here. This isn’t at all the case. The intestate laws in California determine who is going to get what. The property is divided into community property and separate property. How the property is handled after your loved one passes away is determined by the type of property and who on the successor list is still living. For example, a surviving spouse is on the list of successors. Siblings, children and parents are all on the list. In some cases, the list can even include nephews, nieces and other more distant relatives if there aren’t any of the closer relatives in the picture.

Probate isn’t quick or cheap

If your loved one’s estate is too large to bypass probate or if there is a challenge filed, you will have to work through the probate process. This isn’t an easy to cheap ordeal. In fact, this is one of the main reasons why some individuals do create an estate plan. The estate plan can save time and money.

The probate process can be rather complicated. It is imperative that you understand what points apply to your case. This might be able to help you save time and money as you work through handling your loved one’s estate during this trying time.

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Many people develop an estate plan when they first have children. They want to ensure that their kids are cared for by responsible adults and provided for financially if they pass away. However, too often, they then neglect to update those estate plans over the years.

An experienced California estate planning attorney will advise you to review your plan every few years or when a major life event occurs. However, they depend on their clients to tell them when a change occurs that may warrant a change in their plan.

Sometimes these changes are immediate, like a birth, death, marriage, divorce or move. Sometimes they are gradual, like children growing up and becoming independent or an accumulation of wealth over the years.

Following are just a few changes that may warrant a review of your estate plan to make sure that it’s still fulfilling your intentions and is still working in the best interests of your family and other beneficiaries.

— Relocation to another state: Every state’s estate laws are unique. Whether you’ve moved into or out of California since your estate plan was set up, it’s essential to have an estate planning attorney in your new home state review your plan to make sure that it complies with state laws.

— Changes in philanthropic goals: Perhaps when you developed your estate plan, you didn’t have any charitable organizations you felt passionately about. Perhaps you designated several charities, but one has disappointed you. It’s always a good idea to review your philanthropic goals and make additions and changes to your estate plan as you desire.

— When a fiduciary is no longer appropriate: Fiduciaries may be people or organizations who are names as trustees to control the assets in a trust that you’ve set up in your will. Executors are also fiduciaries. They are the ones responsible for administering the plan after your death as you’ve directed. Even if the people you’ve designated are still alive, you may determine that they’re no longer responsible enough or able to do the job correctly.

If you have any question about whether a change in your life warrants a revisit of your estate plan, it’s best to check with your attorney. He or she can advise you on whether a change is necessary and help you do adjust your plan accordingly.

Source: Fidelity, “Dust off your estate plan: 10 common pitfalls to avoid,” accessed June 07, 2017

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In California, married couples have what’s known as a spousal fiduciary duty to one another under the state’s Family Code. According to the code, the marital relationship “imposes the duty of the highest good faith and fair dealing on each spouse, and neither shall take unfair advantage of the other.”

This means that if one spouse is incapacitated, the other can manage any assets that are deemed community property. However, in order to manage his or her spouse’s separate property, the spouse must have power of attorney or trustee powers.

This is yet another reason why estate planning is essential. If you want your spouse to be able to manage your separate property should you become unable to do so, you need to designate that. If you don’t, your spouse may need to file a petition with the court to manage non-marital assets belonging you.

It’s best to make these arrangements in your estate plans while you are both physically and mentally healthy. Otherwise, it’s possible for other family members to make a case that you weren’t mentally capable of making the decision to let your spouse manage your property or that your spouse used undue influence on you.

When you and your California estate planning attorney are developing your estate plan, it’s generally best to inform your children and other family members about the terms of the plan. This is particularly important if you are on a second or subsequent marriage and have adult children.

While this is often less than pleasant, by informing everyone of your wishes, you can help prevent family squabbles after you are gone. Your attorney can advise you regarding how best to do this and can be on hand to help answer questions and deal with any issues that family members may have.

Source: Record-Bee, “The spousal fiduciary duty,” Dennis Fordham, accessed May 31, 2017

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Parents and grandparents generally feel fortunate when they have considerable assets to pass on to younger generations in their family. However, how can you assure that they’ll handle their inheritances wisely?

Even responsible people can lose perspective when they inherit a significant amount of money — spending it on things they had never even considered before. They can also become prey to unscrupulous “advisors” as well as friends and acquaintances asking them to invest in a sure-fire-success business venture. Both can ruin their lives and leave them worse off than if they’d received nothing.

Many people these days want the inheritance they leave to their loved ones to be about more than money. They want to pass on the values they hold dear and the lessons they’ve learned. How do you incorporate those into your estate plan.

One way to do this is by creating an “incentive trust.” You designate a trustee to make distributions to the beneficiary based on the requirements you designate.

For example, you may want your grandchildren’s inheritances to be used only for their education, to buy a home (perhaps within a certain price range), to start a family or to create a business. Some people designate a higher inheritance if the beneficiary graduates from college.

It’s up to you as the grantor to place whatever terms on the trust you choose, providing that they aren’t so nonsensical or wrong-headed that a court won’t enforce them. For example, a judge likely won’t uphold your wishes that your grandchild marry a person of a specific race in order to receive his or her inheritance. It’s also good to discuss your reasoning behind those terms with your trustee and your beneficiaries, if they’re old enough.

Of course, sometimes people’s lives are beset by unforeseen circumstances such as a health crisis or the loss of a home due to an earthquake or other act of nature. You can designate in your incentive trust that the funds can be disbursed for such emergencies.

Your California estate planning attorney can work with you to set up an incentive trust to help ensure that your loved ones can benefit from your hard work and good fortune and that your values will be passed on to future generations — even those not yet born.

Source: Huffington Post, “Passing Values, Not Just Money, via Incentive Trusts,” Steve Cook, accessed May 24, 2017

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When a family member dies, even the closest of siblings can become estranged, especially when money or property is at stake. Probate issues have a way of bringing out siblings’ stubbornness and reviving contentious emotional discussions as well. Because most siblings don’t find themselves involved in probate litigation until they reach their 50s or 60s means that there’s a lot of emotional baggage.

There are a number of contentious issues that ultimately end up with siblings looking to litigate a case in front of a probate judge. Perhaps one of the most common reasons is a child attempting to challenge his or her parents’ will. This most often occurs when a sibling has been named executor of their parents’ estate, yet has failed to adequately perform their responsibilities to its beneficiaries.

Litigation that occurs because of this most often does so because a will or trust treats one child differently from another. Parents may elect to treat one child differently from another simply because one child is deemed to be more well off than another or because one has become estranged geographically or psychologically.

Parents can greatly mitigate any potential risk of a will or trust being perpetually stuck in probate if they simply engage in adequate estate planning while still alive.

If a will or trust is challenged, one argument that a child may use against another is that they had undue influence over the parent. That child may have even inappropriately used a power of attorney in a way that gave him or her added advantage when his or her parent was in one of the most vulnerable states. At the same time, they may have done everything right.

Another argument that a sibling is that the executor of the estate made decisions that were not in the best interest of the beneficiaries, but instead self-serving. Or, if a parent dies without a well-planned estate, or intestate (without a will), disputes can arise over who gets what. These are two other examples of situations that may end up in probate litigation.

If you and your sibling are not seeing eye to eye with respect to the execution of your parents’ will, then you may need to seek out the guidance of an experienced Los Angeles probate attorney.

Source: www.metrowestdailynews.com, “Sibling rivalry in probate disputes,” Patricia Davidson, accessed May 19, 2017

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You always meant to get around to writing a will, but you never did. Now, in the aftermath of your death, your family is learning that not having a will can cause trouble. When you die without a will, the laws of intestate succession determine who inherits your estate, and it may not be whom you expect.

The first thing that the laws look at is whether or not you were married. In most cases, when one spouse dies, the spouse’s community assets are transferred to that individual. Other assets, including separate property, only go to the widow or widower if there are no children, parents, brothers, sisters or other direct relatives. If there are, then the separate property goes to those individuals before the spouse.

If you have a child, then half of your separate property goes to your child and half to your spouse assuming there are no other heirs. If you have more than one child, the separate property in the estate is split up with your spouse receiving a third before the other two or more children receive the remaining assets. In these situations, your spouse receives assets only when there are no other direct heirs, like your parents or siblings.

It can become complicated if you die intestate, because your spouse may not end up receiving the property you expected he or she would. Much of the property is doled out to others in the family and potentially to people you did not want to be the recipients of your assets.

How can you avoid dying intestate?

Make sure you speak to your attorney about creating a will or living trust. A will can make sure your wishes are known long before your death and that all your property goes to those you wish to be the beneficiaries. A revocable living trust can be altered as you age, so there’s always a document in place to let the family know whom you want as the recipients of your assets.

Your attorney can help you create either of these documents to give you peace of mind about your estate.

Source: Nov. 30, -0001

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If you’re drafting your estate plan with the intention of leaving some or all of your assets to your adult children, it’s essential to talk to them about their inheritances once you’ve determined what you are going to leave them. For many families, this may be the first time that parents and kids have discussed just how much there is in the estate. Many kids are surprised to find that their parents, whom they’ve always seen as tight with a buck while growing up, have actually amassed a good deal of money.

For many parents, it’s essential that their assets remain in the biological family. That may not happen if the kids get married — and divorced. An ex-spouse can end up with a significant amount of your child’s inheritance if it’s not protected.

Fortunately, there are steps you can take in your estate planning to help prevent that. However, your kids need to do some things when they marry to help ensure that your wishes are carried out.

Any inherited assets need to be maintained as separate property. If, for example, you leave a house to your child, only his or her name should remain on the title. Adding a spouse to the title will make it marital property. However, if the other spouse’s money is used to refurbish it, that can also complicate matters. If your child uses his or her inheritance to purchase a home jointly with a spouse, it can also be considered marital property.

Of course, any inherited assets placed into a joint account with a spouse also become marital property. That’s why special care has to be taken not to commingle separate assets.

A prenuptial agreement can help protect an inheritance. However, again, spouses have to take care not to combine assets in any way that can make them marital property unless they are prepared to share them with their spouse in a divorce. Here in California and other community property states, that means splitting them 50/50, even if one person contributed significantly more to a property, account or other asset.

If you’re leaving a sizable inheritance to your adult children, it’s important to get financial as well as legal guidance for them so that they can protect that inheritance for themselves and future generations.

Source: WTOP, “How to protect inheritances for future generations,” Nina Mitchell, April 19, 2017

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