There are a lot of things that you have to handle when a loved one passes away. You may have to make the final arrangements. You might have to handle other duties, as well.

If you are the executor of the estate, or even if you are just a concerned heir, you will have to pay close attention to what is going on with the estate. The more you know, the better you are likely going to handle everything that is going on during the probate process.

Is there a will in place?

If there is a will in place, the will dictates what happens to the assets that your loved one left behind. While wills are usually pretty solid, there are some instances in which this might not be the case. If your loved one died without a will, he or she died intestate. This means that property is distributed according to the laws in California that govern these estates.

Does the estate need to pay any bills?

There are some bills that the estate will pay. You should seek assistance with this because there is an order that you must follow when determining what must be paid. If the estate can’t cover the bills, the heirs won’t usually have to do anything to cover them. It is important that you find and account for all of the assets that are part of the estate so that you have an accurate account of what you can count on if there are bills that need to be paid.

Is any point in the estate plan that is being disputed?

It is possible that points in the estate plan might be disputed. You have to handle these situations carefully, so make sure that you understand what responsibilities you have in these cases. There are various reasons why a person might not agree with the estate plan. Trying to find out the reason and determining if there are any steps you can take to rectify the situation might be appropriate. Make sure that everything you do is handled in compliance with applicable laws.

Are all heirs accounted for?

You might have to search for heirs listed in the estate plan. This often occurs if there are heirs that have moved away. While most heirs can be found with a little work, there are some instances in which this doesn’t occur. You should make sure that you find out what you should do if you can’t find heirs who are listed in the estate plan.

Source: Nov. 30, -0001

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If you’re a Californian doing your estate planning, it’s essential to understand that it can, and maybe should, involve more than a will and other documents that detail how you want your assets disbursed after your death. For example, you can designate your wishes for your health care ahead of time in case you are unable to speak for yourself later.

California has something called an advanced health care directive. It lets you designate what type of procedures you want medical professionals to take to prolong your life and under what circumstances you want life-extending measures to end.

As one California estate planning attorney notes, these directives often address what people want to happen if they are going to be in a persistent vegetative state for the rest of their lives. “Do you want to be kept alive forever, or do you want to have life-sustaining measures terminated? Many people don’t want to be kept alive if there is no hope of ultimately surviving.”

An advanced health care directive can also state what type of palliative care you want. For example, do you want to receive morphine that would ease your pain but possibly hasten your impending death?

Some people’s worst nightmare is something called “locked-in syndrome.” This is a rare condition where all voluntary muscles are paralyzed except for those that control the eyes. People who suffer from this are conscious and awake, with no cognitive impairment. However, they have no ability to move anything beyond their eyes. You can designate that should you end up in that state what you want medical professionals to do.

None of these things are pleasant to think about, of course. However, by codifying your wishes, you take the burden off of your loved ones of determining what, if any, measures should be taken to keep you alive. It also prevents the case from ending up in a court with a judge who doesn’t know you making the decisions. Your California estate planning attorney can help you draft an advanced health care directive as part of your overall estate plan.

Source: Fontana Herald News, “One very important part of an estate plan is a healthcare directive,” Samuel Ledwitz, April 27, 2017

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Estate planning attorneys are finding that people are increasingly drafting wills and other estate documents at younger ages than in the past. The unexpected deaths of so many celebrities last year got a lot of people thinking about their own mortality sooner than they might have otherwise. The widespread coverage of terrorist attacks and other violent events that costs people of all ages their lives can have the same impact.

Nonetheless, only about a third of all Americans had a will last year. If you’re seriously considering developing an estate plan, you’re already ahead of the game. You can save your family conflict and money after you are gone. You can also include documents to help ensure that your wishes for your health care and finances will be carried out if you become incapacitated and unable to speak for yourself.

There are a number of pitfalls both in the way that an estate plan is drafted and maintained and in other decisions that people make in conjunction with their estate planning if not done properly. That’s why it’s essential to have the guidance of a California estate planning attorney who can help you avoid as many of those as possible.

For example, sometimes people think it’s easier to go ahead and transfer one of their properties (either the family home or vacation home) to their children while they’re still alive rather than put it in their will. However, if that child files for bankruptcy, you could have creditors potentially taking your home.

Similarly, people sometimes transfer significant amounts of money to their children to help them avoid estate taxes. However, if you end up living another few decades, this could leave you without the resources you need in your old age.

Too many people develop their estate plans and then forget about them. A good rule of thumb is that you should thoroughly review these documents every three years, and of course more often if there are significant life changes like marriage, divorce, additional children or grandchildren or a new home.

Careful estate planning takes a lot of time and thought about what you want to leave behind. It may not be pleasant to think about, but after you’ve done it, you’ll likely feel a sense of ease that you didn’t have before.

Source: New York Times, “Wills Can Avert Family Warfare, but Have Their Own Hidden Traps,” Janet Morrissey, April 21, 2017

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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

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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

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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

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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

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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

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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.

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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

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