Increasingly, couples are choosing to postpone marriage until later in life or not marry at all. While cohabitating partners may feel married, in the eyes of the law, they aren’t.

Here in California, common law marriage isn’t recognized. That means that no matter how long you and your significant other have lived together, the two of you aren’t entitled to some of the benefits you would automatically receive as a spouse when the other one died.

Therefore, it’s essential that if you want to ensure that your partner is provided for after your death, you have a solid estate plan. It can do more than detail how you want your assets distributed. You can include documents that give your significant other the right to make financial and medical decisions for you if you are unable to make them yourself. An advance health care directive can let you detail your wishes regarding things like under what circumstances to discontinue life-sustaining measures.

An estate plan can also help all of your loved ones avoid the stress and expense of going through probate court. If your family ends up having to go through probate, under the law, they don’t have to notify your partner since you had no legal relationship.

Which documents you include in your estate plan will depend in part on the amount of assets you have. Your California estate planning attorney can help you determine which documents you should include based on that and what you want to accomplish with your estate plan.

Generally if you have assets (including your home) totaling more than $150,000, it’s best to set up a revocable living trust. If you have a home and you want your partner to keep that home after you die, it’s essential to designate that. Otherwise, family members could literally force him or her out.

While most people would like to believe that their family and their partner will work things out amicably if they die, too often that doesn’t happen. An estate plan helps provide insurance that your wishes for your significant other are carried out after you die. It also allows you to designate charitable organizations and other beneficiaries to whom you’d like to leave some money. Finally, it will make things easier for all of your loved ones after you’re gone.

Source: Huffington Post, “Estate Planning for Unmarried Couples,” Alexandra Smyser, accessed April 28, 2016

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Trusts are an important part of many Californians’ estate plans. However, drafting a trust or other estate planning documents is rarely a “one and done” situation.

Assuming that you haven’t waited until you’re very old and/or ill to do this important planning for your legacy and your family’s future, you’ll likely need to make some amendments over the years. Marriage, divorce, births, deaths and many other factors can necessitate changes to a trust.

It’s essential to remember that amending a trust has to be done correctly. Otherwise, the amendments aren’t legally binding.

Some people, believe it or not, actually write their changes on their original trust document and put it back in their safe or file cabinet, believing that this is all they need to do. In fact, not only are those amendments not valid, but writing on a trust document can invalidate the whole thing.

Amendments to trusts need to be done with the same legal formality as the original trust. Your California estate planning attorney can ensure that the amendments are made properly.

If you have a considerable number of amendments, whether all at once or over time, many attorneys will recommend that you “restate” the trust. That means that you incorporate the amendments into a new trust document. That makes it easier for heirs and others dealing with the document after your death. If you only have a few amendments over the course of time, those can just be maintained with the original trust and read along with it when the time comes.

Sometimes people make changes to their successor trustees, powers of attorney and others they’ve designated to carry out their wishes if they become incapacitated or die. Those changes also have to be made formally. Again, your family law attorney can assist you in doing this.

Remember that wills, trusts and other parts of your estate plan are legal documents and must be treated with the appropriate gravity. Not doing so can create confusion, conflict and added expense for your loved ones after you die, and no one wants to do that.

Source: The Pasadena/San Gabriel Valley Journal, “How to Properly Amend Your Estate Plan,” Marlene S. Cooper, April 13, 2016

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Being named the executor of someone’s estate is a bit of a mixed blessing. You may wonder if you should feel honored to be chosen, but there still may be some part of you that wonders why you were the one “lucky” enough to get the job.

In either case, this mission, if you choose to accept it, is yours. You need to get organized so you can tackle the challenge head on and do it right. If it isn’t something you believe you can take on, the court will reassign the task to someone else.

Preparing for the task

The job of an estate executor is a large and complex one, which is part of the reason why it can take a year or more to settle an estate. The best way to make any task less daunting is to get organized early. Sorting documents into folders is one way to get started. These folders should include:

• Vital records
• Legal papers: death certificates, will, trusts,
• Employee documents revealing benefits, pensions, etc
• Financial: keep separate accounts for the estate and personal accounts, statement proof of account closure, debts paid receipts
• Government: income taxes, government pensions
• Automobile: this folder should contain anything related to any automobiles the decedent owned, including related bills and auto insurance policies
• Estate management costs: you may be able to be reimbursed by the estate when you use your own money

Taking things one step at a time

If you are serving as an executor, it is important not to rush the process. While some may be anxious to get their inheritance, it is more important that the decedent’s affairs are settled correctly. When disputes happen, it only creates more delays. Developing a checklist can help. Things to consider include:

• Obtaining the death certificate
• Finding estate documents, including the will or trusts
• Consulting with an attorney and/or an accountant who is experienced with estate distribution
• Find letters of testamentary/surrogate certificates: these will prove you have the authority to use money in the estate to pay bills or open and close accounts as necessary
• Locate the assets listed in the will and create an inventory
• Determine financial obligations, including bills and taxes and make necessary payments

No matter what step you are working on at any given time, it is important that you protect your own interests as well as those of the decedent. Keeping meticulous records on all of estate related actions is crucial.

This includes recording dates you consult with the lawyer, talk to bankers, or work with other estate advisors. At some point, you could be asked about the details of the estate, and having this journal will help you to be prepared.

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It isn’t uncommon for a parent to name one of their children or another responsible party as the executor of their estate. In cases such as these, this individual is the representative of their assets and heirs.

Under some circumstances, this role could be considerably complex and encompass many years depending on what’s involved with the estate. If you’ve been named, don’t worry, executors receive a commission or “stipend” from the estate as payment for the work they complete.

What is the role of the executor?

While the executor is often a family member or close family friend, there are some instances in which it might be a financial institution. If an individual needs assistance, a financial institution may also serve as a co-executor. The executor basically serves four roles.

• Finds assets and collects them, and, until beneficiaries receive them, they’re responsible for them.
• Administers expenses from estate, including decedent’s debts and funeral expenses.
• Handles the payment of the decedent’s final tax payments.
• Ensures final assets are distributed accordingly as outlined in the will.

What are the responsibilities of the executor?

When a decision is necessary in accordance with the will by the executor, it is referred to as an election. These provisions include making impartial decisions regarding how each beneficiary could become directly financially impacted. Often, an investment advisor is called in to contribute to the making of these decisions. Immediately after being appointed as executor, the individual is appointed throughout the probate process. At that point, they can represent the estate in a third party manner to liquidate assets and handle financial affairs.

Have you been appointed as an executor?

The Probate House L.C. provides assistance to individuals who have been named as an executor and can offer advice as needed. If you’ve been appointed as an executor and have questions about probate, the distribution of assets, acting as a third party representative, or any of the other roles and responsibilities served by an executor, calling on the services of an attorney is essential.

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When you think about estate planning, it is common to think about planning for funerals and distributing wealth; including homes and investment accounts. This mode of thinking may lead people to believe that estate planning is only for the well-of, middle aged and elderly.

However, estate planning can be beneficial for young people as well; especially those in their 20’s and 30’s. This post will highlight a number of reasons why. 

Lifestyle patterns – Millenials (those in their 20’s and 30’s) commonly live active lifestyles, including riding motorcycles, traveling to exotic locations and participating in extreme activities. These increase all come with a certain level of risk. So having an estate plan can provide some peace of mind to deal with the unthinkable.

Children – Additionally, an estate plan can include plans for how (and who) children shall be cared for in the event you can no longer do so. As such, a guardianship plan should be in place. Another reason for young people to have an estate plan.

Pets – For many people, pets are like family, so including plans for how to take care of one’s pets is a good reason to have an estate plan.

Decision-making power – While young people may not think that they have enough assets for an estate plan, they may not realize that what they do have will be distributed according to intestate statutes instead of their own wishes. An estate plan will help them retain such decision-making power.

If you have more questions about how young people can benefit from an estate plan, an experienced attorney can help. 

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Many people make assumptions about family, particularly their parents. They assume that their parents should take care of them in childhood, that they will step in and help their parents a bit during their golden years if needed, and when their parents are gone they will take care of them once again — by leaving their estate.

Some people refer to this as “birthright,” but this idea is a suggestion at best, especially if others are involved. The truth is that no one has a real birthright. It will be the estate plan or intestacy laws (in the absence of a will) that will dictate whether or not anyone has a right to the property of a decedent.

Community and separate property

When someone dies, it will be in one of two situations. They will be married or unmarried. In California, the inheritance hierarchy moves a bit differently depending on marital status. Being married puts one more major player into the inheritance, and property is further divided into the categories of community property or separate property. Community property are things that belong to the marriage. This means they were obtained and held by the couple together after they were married and living in the state of California. This could be joint accounts, a house, retirement plans, etc.

Separate property are things that each person owns independently of the other. It consists of belongings that person had before the marriage or inheritances that were left to a person individually. For example, an heirloom necklace might be handed down to a specific person that is indicated in a will or a trust as part of an estate plan.

How intestacy laws work in California

Not everyone takes the time to draft a will or trust, because they believe it will be sufficient to let their estate be divided among their closest relatives, whether there is a will or not. While that is true to some extent, that division isn’t necessarily delivered in the proportions that are expected, and they don’t always fall in line with what is preferred.

If a person dies without a will or estate plan, the state if California steps in and decides how property should be divided, guided by the laws of intestacy which define priority relationships within a family to determine who gets what. A person’s actual relationships might reflect something much different.

Married decedents

If a married person dies in California without a will or trust, any property that was considered community property reverts to the surviving spouse. Separate property is divided according to the laws of intestacy.

If the person had one surviving child, or their deceased child had children, half of the estate goes to that person and the other half goes to the spouse. If there were two or more kids the spouse gets one third of the estate, and the remaining is divided among the children.

If there are no surviving children in the picture, the decedents parents are next in line for that half of the estate, and the other half goes to the spouse. If their parents are deceased; the decedents siblings are next in line, followed by nephews and nieces. If relatives do not claim their inheritance, it will go to that state of California.

Unmarried decedents

If a person dies unmarried, the role of spouse is taken out of the equation, but this still leaves no absolute guarantees for their children or other relatives. The “inheritance hierarchy” looks like this;

Divided equally among the decedent’s children. If one of their children is deceased, their children get their portion of the estate.

• Inherited by surviving parents
• Divided equally among siblings
• Inherited by grandparents
• Divided among aunts and uncles that are the children of grandparents
• Divided among aunts and uncles children (cousins)
• Divided among more distant cousins, or whoever can be considered next of kin
• If no relatives make a claim, the estate goes to the state of California.

A matter of value

When it comes to actual money, determining value is fairly straight forward. When you’re considering belongings that mean something different to different people, determining what something is worth becomes more complex and more personal. If the state divides belongings, everything is stripped to it’s dollar value and this can take away from what it really is worth. Also, when the state is making these determinations, it can also take a good deal of time — something else most families value.

By making provisions in an estate plan for exactly where your assets should go, you leave the control to people you trust. You can decide whether you want to give to charitable causes, rather than relatives or the state. You can judge who can best benefit from an inheritance, or help someone reconnect with a memory by leaving them a special gift.

The biggest caveat of all

While this is a good outline for a basic estate (and even this seems very confusing), a nearly unlimited number of circumstances can quickly complicate the matter.

One wrinkle involves property with more than one owner (jointly owned property). Another involves property that is quasi-community. Yet another involves will contests, when one or more heirs contests the validity of a will, specific distributions or even the intent of the decedent. Undue influence can play a role. Even a probate judge’s discretion in some situations can throw a wrench into the mix.

The truth is, you should consult a probate attorney whether you were named as the executor in a will or are a family member of a decedent who thinks they might have a claim. 

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In a number of our posts, we have talked about inheriting property. Indeed, most of them have been in the context of celebrities leaving large sums of money and properties to their heirs, but that doesn’t mean that properties are not left to regular, everyday people.  In fact, it is estimated that thousands of homes will be willed or left to children or loved ones in the next decade.

Because of this, it is important to know what perils await the unsuspecting inheritor of a property. This post will highlight a few of them. 

Property damage – It is not uncommon for people to inherit older homes; many of which have not been updated or renovated. As such, making sure the property is free from structural defects and other maladies (such as mold) is important. It may be a costly, time consuming process, but it will likely be necessary should you want to sell or rent the property.

Unpaid property taxes – Additionally, the home you are given may have tax problems along with it. Specifically, the annual property taxes may not be up to date. And as the person who inherits the home, you may be saddled with the responsibility of paying them. Before the county tax assessor brings suit to collect taxes in full, it is prudent to establish a repayment plan.

Other interested parties – While you may be certain that the home was willed to you, there may be other parties who disagree and may challenge the will (or certain provisions of it, that suggest you are the new owner of the property.

If you have additional questions about inheriting a property, an experienced estate planning attorney can help.

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For many of us, our pets are beloved members of our family. However, too often they are not considered when people are developing their estate plans. People just assume that a family member will take them when they die, or that they will outlive their pets.

Unfortunately, however, companion animals often end up in shelters because family members can’t or won’t take care of an them after the owner has died. Sometimes an owner unexpectedly dies or becomes incapacitated, and there is simply no place for the animal to go other than a shelter.

At The Probate House L.C., we know that no one wants that for their pets, and it doesn’t have to be that way. Under California law, people can create a trust to provide for the care of their pets for the remainder of their lives.

We can help you set up a pet trust. That trust will not only designate who will take your animals if you become incapacitated or die. It will provide that designated caretaker with funds to help pay for housing, food and medical care for your pets.

There are various ways that you can do this via a will or living trust. You can be as specific or general in the instructions as you choose. Our attorneys will work with you on the verbiage to help ensure that your wishes for your pets are followed.

Our Torrance pet trust attorneys will help you set up a pet trust as part of your estate plan to provide for the four-legged members of your family. Call us or contact us online to schedule an appointment to begin your estate planning.

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It is arguably tragic when an elderly person passes away without having the opportunity to enjoy their golden years by retiring. We use the term “arguably” because we understand that some people don’t want to retire, and their passion may be killed if they are unable to do what they love for as long as they can.

For others, retirement is not an option because they have a great deal of debt that they must deal with. They may be too proud to consider bankruptcy and do not want to burden other loved ones with their financial troubles. 

However, the question (and in some circumstances) the problem of debt does not go away when a person passes away. In fact, it is not unheard of for creditors to come after the deceased’s estate for payment on their outstanding debts.

This is not specifically because creditors may be greedy or heartless (even though some may be), but they know that an insurance policy or annuity may be out there that can satisfy an outstanding debt. This is where an experienced and knowledge estate planning attorney can be helpful.

A skilled lawyer can help in deciphering whether claims are legitimate. As we alluded to earlier, it is not surprising that some creditors will come out of the woodworks once a person passes. After all, they want the least resistance possible between them and collecting money.

If you are an executor and are experiencing creditors’ actions against your loved one’s estate, an experienced estate law attorney can help.

The preceding is not legal advice.

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It can be especially difficult to witness a loved one age and develop serious, devastating health disorders that affect his or her mental capacity. Although most people in California understand how important estate plans are, not everyone has the legal protections in place to avoid being taken advantage of. When dementia or other illnesses leave an elderly family member exposed and vulnerable, it is often up to loved ones to establish necessary conservatorships to keep that individual safe.

Health care powers of attorney and living wills are common features of solid estate plans, but there are some individuals who fail to include these documents or who skip creating an estate plan altogether. The lack of an advanced health care directive might be due in part to the common myth that estate plans only address what happens after a person passes away. However, without any of these important documents, elderly disabled individuals are often in vulnerable situations where they can easily be taken advantage of.

Conservatorships are an effective way to prevent unnecessary elder abuse. This course of action is often reserved for those who have lost a certain amount of mental capability to care for themselves. When necessary, becoming a conservator for a loved one can be the best decision when that person’s mental, physical and emotional health are at stake.

We understand the overwhelming emotional experience that can accompany becoming a conservator, which is one of the reasons we remain committed to our clients throughout the entire process. From first petitioning the court to the final appointment, we guide our California clients towards the most successful end possible. For more information regarding conservatorships and how they might be beneficial, please visit our website.

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