Very few people actually seek to become an executor of an estate or the trustee of a trust that becomes active after someone dies or becomes incapacitated. It is a dubious honor, typically unpaid, that can create a lot of personal stress as well as interpersonal conflicts.

People that you have known your whole life may start examining every single thing you do to find fault. It can be incredibly frustrating, time-consuming and thankless. However, someone that trusted you believed that you were capable and competent to perform these duties, and you probably don’t want to disappoint.

If you are the sole trustee of a large trust, and other heirs are unhappy with the set-up and execution of an estate or trust, you may face the brunt of their frustrations. It isn’t that uncommon for trustees who are faithfully performing their duties as outlined in the estate plan, last will and trust requirements to face legal challenges from other heirs or family members.

If you are facing a challenge to your position of trustee despite your attempts to adhere to requirements, you need to speak with an attorney who has experienced with estate administration and trusts in California.

Trustees must follow the requirements of the trust

In California, trusts have specific requirements. Trustees are then bound by their agreement to fill that role to adhere to the requirements and requests within a trust. Sometimes, that could mean preparing to sell a family home even though other heirs would rather retain the property.

Sometimes it means providing for the care of special needs children or even pets. Other times, it requires ensuring that heirs meet obligations set forth in the trust to enjoy any of its assets. Whatever the specifics of the trust, it is your legal duty to follow them and ensure that you abide by the wishes of the trust’s creator.

Sometimes, even when you do all of that, or perhaps specifically because you do, other people become upset. They may imagine that another trustee could bend the rules, or they hope to be appointed in your stead.

Whatever the motivation behind someone challenging your position, the best way to counter it is to carefully document how you have been fulfilling your obligations as trustee and to work with an attorney. Not just any attorney can help you in the event that your position as trustee is challenged. You need the help of an attorney who understands estate, probate and trust law.

The right attorney can make a big difference

Whether you’re handling a living trust for an incapacitated family member, a special needs trust for the child of someone who has died or a revocable or irrevocable trust as part of an estate, working with an attorney offers legal protection. Your attorney can help ensure you are complying with both the law and the requirements of the trust. Your lawyer can also help you if other heirs or family members decide to challenge your position as trustee in court.

Source: Nov. 30, -0001

Posted in Trustees Executors & Fiduciaries | No Comments »

If you have a responsibility for someone’s estate, whether that person is still alive or has passed away, you are likely a fiduciary. A fiduciary’s specific title may be power of attorney, trustee, executor, conservator or agent.

As a fiduciary, you have certain legal responsibilities. Namely, a fiduciary is required to act in the best interests of estate and/or the principal and to do so in a competent manner. Fiduciaries must generally avoid self-dealing and conflicts of interest. There are exceptions for some powers of attorney. If a fiduciary breaches any of those responsibilities, he or she may face legal repercussions.

Many people assume fiduciary duties without realizing it when asked by a family member or appointed by a court to oversee someone’s estate. It’s essential to understand exactly what you’re taking on when you accept such a responsibility and what you are required to do to fulfill that responsibility in accordance with California law.

If you’re not a financial or investment expert, but are asked to make these decisions as a trustee or power of attorney, you should seek advice from financial professionals. If you don’t and you make bad decisions, you could be held liable for them by family members and other beneficiaries whose financial interests were harmed by those decisions. If you’ve employed competent professionals, you likely can’t be responsible for their decisions.

Besides seeking financial advice, if you are asked to be an agent, it’s wise to consult with a California estate planning attorney. He or she can advise you in detail about your responsibilities and help you avoid legal entanglements with angry family members down the road.

Source: Lake County News, “Estate Planning: On being a fiduciary,” Dennis Fordham, April 08, 2017

Posted in Uncategorized | No Comments »

Choosing someone to manage a trust is one of the most significant estate planning decisions you’ll make. This is particularly true if you’ve set up a trust to provide for family members, both while you’re still alive and after you’re gone.

However, sometimes a trustee doesn’t live up to your expectations. He or she may even end up mismanaging the funds in the trust or doing something illegal. The person who appointed the trustee may make the decision to remove him or her. So can beneficiaries of the trust under certain conditions.

One common reason for removing a trustee is if that person is shown to be “self-dealing.” That’s when trustees breach their fiduciary duty of managing the trust in order to use the funds for their own benefit. Trustees can also be removed if they simply do not manage the funds properly or fail to manage them at all, even if they don’t benefit from the mismanagement.

Another common reason why trustees are removed is if they fail to abide by the terms of the trust. Trustees are expected to act in the beneficiaries’ best interests.

Beneficiaries may also petition the court to remove trustees if they believe those trustees are hostile towards them. This may be the case if one family member is the trustee and the other family members don’t believe that he or she is properly distributing the funds.

Beneficiaries need to show evidence to a court that a trustee should be removed. An experienced California estate planning attorney can provide guidance and help you present your case.

Source: FindLaw, “5 Reasons to Remove a Trustee From Your Trust,” Brett Snider, Esq., accessed April 13, 2017

Posted in Trustees Executors & Fiduciaries | No Comments »

One of the areas covered in many Californians’ estate plans is what actions they want and don’t want taken to extend their lives if they are unable to speak for themselves. These can be spelled out in detail in an Advance Health Care Directive and overseen by a health care power of attorney. In California, the Natural Death Act allows people to be removed from devices and not undergo procedures that would keep them alive if they choose.

However, what if a person is suffering from a terminal illness or debilitating condition and no longer wishes to live in pain? Should they be allowed to end their misery with the help of a physician? That’s been a controversial topic for many years.

Two years ago, California legislators, after much debate, passed the End of Life Option Act. The law allows Californians who are terminally ill to obtain drugs that will end their life. However, they must administer those drugs on their own.

There are many caveats to the law. For example, patients must:

— Have a medically-confirmed diagnosis of a terminal illness that is expected to result in their death within six months.

— Make three requests 15 days or more apart before a physician can prescribe lethal drugs.

— Undergo a mental health screening to confirm that they have the capacity to make this decision.

Whatever your view on the End of Life Option Act and the fact that it allows some people to end their suffering before they are expected to die from a disease, many people do want the right to have life support withdrawn if only machines are keeping them alive and there’s no chance that they can return to a life that’s worth living. These stipulations can be made in an estate plan.

While no one wants to think about these possibilities, by doing so and making your wishes known, you save loved ones the heart-wrenching decision that can tear families apart. Your California estate planning attorney can help you detail your wishes in the necessary documents.

Source: FindLaw, “California Euthanasia Laws,” accessed April 07, 2017

Posted in Estate Planning | No Comments »

There’s something to be said for the value of transparency in all human relationships. Generally, even if the truth hurts, knowing the truth will help you and everyone else in the long run. This is especially true when it comes to estate planning.

Let’s say you’re like most Americans, and you have the kind of family that doesn’t like to talk about money. Maybe your family beats around the bush when it comes to difficult truths. This kind of attitude, when applied to your estate plan, can cause problems later on down the road — particularly when one or more heirs, or potential heirs, doesn’t understand the asset distribution plan you chose.

Hold a family meeting with everyone present

Consider holding a family meeting, where everyone is sitting together around the same table, and you talk about what you want to happen with your estate after you’re gone. If you want to give away half your money to charity, tell your children why this is so important to you. If you want to give more money to one child over the other, tell them why you’ve decided to do this. When your family understands your reasoning, and they hear it together at the same time, it will dramatically reduce the chance of in-fighting, disagreements, and will contestations after you’re gone.

Keep this in mind while discussing your estate plan

There are three key words to keep in mind while discussing your estate:

(1) Understanding: Talking about your estate plan, and the fact that you will eventually die, is never easy for any family — no matter if you’re doing the talking, or you’re doing the listening. Always keep the stance of trying to understand your family, and rather than taking offense or getting “triggered” into the defensive. Ask questions that help you understand why they have certain opinions. Also, let your family members know the reasons behind your decisions.

(2) Congruence: Effective communication always includes the “emotional dimension.” Stay focused on everyone’s feelings, and never lose sight of your emotions and those of your family. You might be tempted to be logical and give ultimatums, but this can be destructive to your goal of ensuring that everyone is on board and in agreement with your estate planning choices. Be careful not to fall into a bickering dispute.

(3) Mutuality: Establish a sense of “peership” in the conversation. Always convey the sense of respect, belongingness, engagement and meet your family on an equal level. You’re not coldly dispensing the law of the land. Rather, you’re addressing everyone as equals and honoring their feelings and opinions.

Get help from an estate planning lawyer

Before conducting your family meeting, you might want to go over your estate plan with an experienced California estate planning lawyer. A lawyer can provide guidance about typical asset distribution strategies. He or she can also give you advice on how to talk about your estate plan with your family.

Source: Nov. 30, -0001

Posted in Estate Planning | No Comments »

Being named as the executor of an estate or the trustee for a trust is quite the responsibility. It will be your job to interpret and follow the last wishes of a loved one. This could include the division of assets, the allocation of physical items and even clearing out a living space.

Every step along the way should be carefully planned and fully documented to protect the executor or trustee. One of the best ways to ensure you are adequately documenting the process of estate administration is to work with an experienced estate and probate attorney.

The larger the estate or trust in your care, the greater the scrutiny from other heirs and family members. If certain people believe you’ve made a mistake or stolen from the estate, you could be facing a civil lawsuit or a challenge in probate court. Your attorney can help you with the process of estate administration to ensure you are following all California state and federal laws.

Your attorney can also ensure that you are accurately performing the requests outlined in the estate plan, trust or last will. Details matter in estate administration, so be sure to take steps to legally protect yourself!

From pricing to payments, keep proof of everything

As noted above, the bigger the estate, the greater the risk of a legal challenge. Generally, with large estates, the person who has passed will have named an executor, but sometimes the courts will appoint one during probate. Regardless of who named you, you have a legal obligation to execute the estate as written and follow the terms of the last will. That’s why it is so critical to you, as trustee or executor, to carefully document everything done on behalf of the estate.

Your attorney can help you with valuation of physical items and collections, as well as the accurate valuation of investments and real estate. Your lawyer can connect you with professionals who can provide a written cost valuation for various items, from fine art collections to purebred animals. These records can validate your claims of accurately and appropriately executing the last will on behalf of the testator.

If you are sued or the estate is legally challenged, you should have a thorough legal record of the valuation of assets as well as when and to whom you gave each item. This will protect you from claims of theft, fraud or faulty handling of the estate, trust or last will.

The help of an attorney is invaluable when handling an estate

The best way to reduce any potential probate court issues or personal liability when acting as an executor or trustee is to maintain accurate records. Working with an experienced estate and probate attorney is also key to ensuring that laws and last wishes are properly followed.

Posted in Estate Administration | No Comments »

It used to be that estate planning largely involved deciding how much money each of your children would get when you died, and who would inherit the good silverware and vacation home in La Jolla. For many Californians, it still is.

However, increasingly, it’s about what kind of legacy you want to leave by giving all or part of your estate to organizations that are doing work you want to support. The head of the Association of Fundraising Professionals says that “the dynamic has changed pretty significantly for the generation of baby boomers. The option of doing something charitably significant with their estates is a change.”

Some people divide their assets marked for philanthropy among several beneficiaries (from small community groups to large charitable organizations). Others choose to leave everything to one that has had a special meaning in their lives or that they’ve worked for and supported during their lives. Many leave money to their alma mater or their place of worship.

Even people who have children may choose to give the bulk of their inheritance to non-profit organizations if those children are grown and are comfortably supporting themselves or have received a significant amount of their parents’ money already.

One estate planning attorney says that choosing to leave money to an organization requires careful thought. She says people should ask themselves questions like, “Whom do I owe my success to? What values do I want to reflect? How do I want to pay back the organizations I believe in?”

Of course, it’s also essential to do some homework on the organizations you choose, if you haven’t already. Note how they spend the money they get from donations and what their plans are for the future. Sites like CharityNavigator.org provide information on thousands of organizations. However, smaller groups (sometimes those most in need of money) aren’t always listed there. Feel free to ask any organization you’re considering donating to for documentation of where there money goes.

As with anything in your estate plan, you may choose to change the organizations to whom you want to leave money. Many people add or remove beneficiaries based on changing interests or perhaps a change in management or direction at the organization. With a well-drafted estate plan, it shouldn’t be difficult for you and your attorney to make those changes.

Source: New York Times, “In Estate Planning, Family Isn’t Always First,” Caitlin Kelly, accessed March 28, 2017

Posted in Estate Planning | No Comments »

You want to leave your adult children an inheritance or perhaps give them a large chunk of money while you’re still alive. However, you don’t want to risk having half or more of that money go to their spouses should they end up divorcing.

It happens all too often. People lose significant parts of their inheritances, including money, property and businesses, that their families intended for them to have.

Maybe you don’t care for your child’s spouse or you don’t see the marriage lasting. Maybe your child hasn’t even begun contemplating marriage. You can still take steps to protect his or her financial future. Actually, if you take this action before there’s a spouse in the picture, no one can take the action personally.

You can place the inheritance in a trust account in your child’s name. If the assets remain in the trust, the spouse isn’t entitled to them, even in a divorce. Setting up a trust costs more money than gifting money to your child or simply designating an inheritance in your will. However, it’s worth it if it can help ensure your child’s financial security.

Of course, if your child removes money from the trust and commingles it with marital assets (such as using it to buy a house that’s in both spouse’s names or to open a joint account), that will make the funds marital assets. That’s why it’s important for anyone who is acquiring a significant amount of assets to learn what steps to take to protect them. An experienced California estate planning attorney can provide guidance to help ensure that your hard-earned money stays in the family.

Source: Kiplinger, “A Trust Can Protect Your Adult Child’s Assets from a Failed Marriage,” Lisa Brown, CFP, accessed March 24, 2017

Posted in Trust Administration | No Comments »

It happens in many families where the roles reverse and adult children become responsible for the welfare of their parents. If a doctor has diagnosed your parent with dementia or other mentally impairing disease, it may be time to start taking steps to ensure that you will be able to manage affairs when the time comes.

In California, the court can appoint a responsible person or organization to act as the conservator for an impaired adult. For example, if your father’s health is failing and he is no longer able to care for himself or manage his own finances, a conservatorship will grant you the authority to act on his behalf. The process of applying for conservatorship can be complex. An attorney can advise you on how best to proceed. Read further to find out more about who can file for conservatorship and the duties required by law.

Eligibility to be a conservator

Several people are eligible to file for a conservatorship. As a relative, you have the right to file for the position for your father. In addition, a spouse or domestic partner can also request to be a conservator. Other eligible applicants for a conservatorship include any interested state or local agencies, individuals or friends, or even your father himself.

When appointing a conservator, the court will base its decision on what is in the best interests of your father. If your father nominates you for the position while he still has the majority of his mental faculties, the court will more than likely approve the request. Typically, the court will only deny a conservatee’s nomination if it decides the person or entity is not in his best interests.

Duties of a conservator

As your father’s conservator, the law requires that you arrange for his care and protection. You will have to decide where your father will live and you will have to make arrangements for his meals, health care, personal care, and even his recreation. In general, you will have to attend to everything regarding his well-being. You will have to receive approval from the court for certain decisions about his health care and living situation. Also, you will have to file periodic reports with the court on your father’s status.

Conservator of the estate

As the conservator of his estate, you will have to manage your father’s finances, locate and take control of his assets, and collect his income. California also requires that you create and maintain a budget that your father can afford. Furthermore, you must protect his assets, responsibly invest his money and pay his bills. You will also have to provide accounting records to the court as proof that you are properly managing your father’s financial affairs.

Conservatorships can be complex and time-consuming. If you have a parent that requires a conservatorship, it is important that you understand his or her rights. Enlist the help of a Los Angeles area attorney experienced with elder law for advice on obtaining a conservatorship for your parent.

Posted in Conservatorship, Estate Administration | No Comments »

It’s often a wise idea for Californians to set up a living trust when they do their estate planning. This type of trust (also called an “inter vivos” trust) can make matters considerably easier on heirs after you pass away, and prevent them from having to go through probate proceedings, which can be lengthy and costly.

Upon the death of someone with a living trust, the ownership of all assets included in the trust transfers to the beneficiary he or she has designated. Many people include their bank accounts and homes in their trusts. Your California family law attorney will provide guidance on retitling these items so that they’re part of the trust.

Of course, people can continue to add to or remove items from the trust throughout their lifetimes. Having an asset included in a living trust doesn’t impact your ability to use it.

A living trust can also reduce estate taxes, particularly if numerous valuable assets are included or for married people with children. Your attorney can help you structure the trust in a way that will best help reduce taxes paid by those who inherit your estate.

One of the key advantages of estate planning in general, including the creation of a living trust, is that it allows people to designate where they want their assets to go after they’re no longer here. Estate planning also lets people designate who will speak for them regarding medical and financial issues if they become incapacitated and unable to speak for themselves. By detailing your wishes while you’re alive and well, you can save loved ones a great deal of conflict and stress later on.

Source: FindLaw, “Living Trust Information,” accessed March 15, 2017

Posted in Estate Planning | No Comments »