Some Los Angeles residents may have experience in dealing with various complications related to estate planning. Although estate planning can be one of the most important subjects for families to discuss, it is often neglected. Moreover, even in cases where families act to secure their respective estates, the process can still be derailed by various complications.

The amount of potential beneficiaries to an estate has the potential to complicate the estate planning process. For example, if a family has a number of half-siblings or stepparents, there can be some conflict caused by arguments over property. For this reason, it is generally advisable to create a list of items of value and clearly designate the recipients of those items in question. Similar arguments can also arise between direct siblings especially when the siblings have been out of contact with one another for some time.

In some cases, an estate plan can be affected by administrative details that may have gone overlooked. There have been a number of cases of estates going into probate because the owner of an estate failed to designate a beneficiary properly. Although this often happens by accident, the resulting ambiguity can cause great hardship for a person’s family and delay or inhibit their ability to inherit.

Given these and other potential pitfalls related to estate planning, someone intending to construct an estate may wish to consult with an attorney. An attorney may be able to review the particulars of one’s financial and familial situation to help them devise an estate plan that fulfills their needs. In this way, it may be possible to avoid obstacles for the estate and help ensure a smooth transition of assets in the future.

Source: Daily Finance, “Avoid These Estate Planning Nightmares”, Michele Lerner, December 13, 2014

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California law recognizes the validity of holographic wills for any residents of the state. A holographic will is a handwritten document in which the testator describes their preferred disposition of the estate after their passing. So long as the will follows the specific previsions of the law, the court will consider it to be valid. However, it may sometimes be easier to invalidate a holographic will than a regular will.

The state of California requires that a holographic will be written out entirely by hand by the person making the bequest. The inclusion of even one typed section into the document may be grounds to challenge the will, unless there were at least two people who witnessed the signing.

There is no requirement to have the holographic will notarized. If the holographic will is not dated, and another will is found that has a proper note indicating when it was signed, then the holographic will may be invalidated until the precise moment of its creation can be proven. A valid holographic will is held to be the equal of any other type of will under California law, but that does not affect questions of the capacity of the testator at the time of signing. Challenges to the will based on the mental health of the testator or the possibility of duress may still be mounted as usual.

The assistance of an attorney can be of benefit to those who wish to plan for the disposition of their estate. An attorney will likely have greater familiarity with the precise details of estate planning, and counsel may help to prevent challenges to a will or its execution. Even a holographic will may benefit from review and possible revision by an attorney.

Source: CA Code, “Probate Code Section 6110-6113“, December 07, 2014

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A conservator may be appointed by California courts if a judge determines that a person is unable to care for themselves or needs help managing their own finances. It is important to understand the differences between the various types of conservatorships so the conservator is clear about his or her duties. The probate court has the option to grant conservatorship over a person’s estate, their person or both.

Elderly people and those who have been in serious accidents are most commonly subject to general conservatorships. In these cases, a conservator makes decisions on behalf of the ward. These decisions can range from daily care, such as what to wear, what to eat and when to bathe to important medical decisions that the ward cannot make on his or her own. In most cases, the conservator knows the conservatee very well and is able to make important choices in that person’s best interest. A conservatee who also needs someone to manage their money may have one or two conservators.

Limited conservatorships are available for mentally disabled adults who are able to take care of some, but not all, of their own needs. A conservator may be appointed to collect the conservatee’s income and ensure their bills are paid or to take on housekeeping duties for them. A third option, called Lanterman-Petris-Short conservatorship, is available for people who need special care. Conservatees in LPS conservatorships may need to stay in a locked facility for mental health treatment. A conservatorship in these cases may be granted when the person needs treatment but refuses to go willingly.

Conservatorships are a legal process. An attorney who focuses on probate matters may help a family member who wants to serve as conservator for an incapacitated relative.

Source: California Courts, “Conservatorship“, November 23, 2014

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A trust may be a worthwhile estate planning tool for many people who live in California. As a general rule of thumb, anyone with a net worth of $100,000 or more may benefit the most from a trust. They may be even more effective for those who also own a business, want to care for a disabled family member or want to delay distribution of assets to children or other heirs.

Many people choose trusts because they may enable an estate to bypass the probate process. With a generation-skipping trust, it may be possible to shield a large amount of money by giving it to grandchildren instead of immediate children. Having a trust offers an additional benefit of naming a trustee who can manage assets after the grantor dies or if the grantor becomes unable to do so while still alive. In a properly-drawn trust, assets may be protected from creditors.

The cost of establishing a trust varies depending on the complexity of the trust. Assets that are included in the trust must be retitled in the name of the trust. Any assets that are not retitled in the name of the trust run the risk of being subjected to the probate process and being distributed in another manner.

Creating one or more trusts may make it possible to protect assets now and retain greater control over how they are distributed in the future. Anyone who is thinking about creating a as part of the estate planning process may wish to talk to an attorney who has experience in this area and who can tailor the document to the client’s particular needs and desires.

Source: CNN Money, “Estate planning: Is a trust beneficial?“, November 16, 2014

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When a person dies in California, his or her estate may be subjected to administration by the probate court. Any assets that were given away prior to the decedent’s passing will not be subjected to probate. Property and assets that were included in a living trust also are not administered by the courts.

For people who have left wills, the probate case can be opened to administer the estate by filing a petition to administer the will. The will must also be filed. If the testator has not named an executor, the petition will include a request that the court appoint one. In cases in which there was no will, the probate court will appoint an administrator. The administrator will then make certain that all creditors and taxes are paid prior to distributing the property and assets according to the state’s intestacy laws.

When a spouse is surviving or if a home is owned in joint tenancy, the home will pass to the other person without being probated. The value of jointly held accounts will also automatically pass to the joint account-holder. Similarly, life insurance money is normally not a part of an estate and will go to the named beneficiary of the policy.

Understanding how estate administration works can help people as they plan. By making careful decisions regarding their wills and whether or not they wish to include property in a living trust people can help reduce the potential tax burden on their estate following their death. Careful planning and making certain to make a complete list of all assets, accounts, interests and property can be of much help to an individual’s estate planning attorney. People should also make a list of all of their intended beneficiaries along with their contact information and determine how they wish their property to be divided.

Source: Superior Court of California, County of Sacramento, “Decedents’ Estates“, November 09, 2014

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There are many reasons why a person might wish to challenge a will. In the majority of cases, the person contesting a will is likely to benefit financially if the will is invalidated. California law permits contestants to challenge wills on several grounds, including lack of capacity, undue influence, revocation, fraud, duress and mistake.

A person who wishes to contest a will in California must file an objection to the probate of the will with the court having jurisdiction over the matter. A summons will then be issued, and it must be served along with the objection on all persons required to be served by statute. Persons served will then have 30 days within which to file a response to the objection.

If a person fails to respond to the summons within the required time frame, the case shall proceed to a hearing despite the failure to respond. The court will consider the objection and any other documents that were filed with the court by the time of the hearing. A person who fails to object may not participate any further in the will contest, but he or she will be bound by the court’s order. Following a hearing, the court will enter an order either admitting the will to probate or rejecting it, and a personal representative will be appointed for the estate.

Initiating a will contest can be challenging, both in terms of the complex legal landscape and the fact that emotions often run high in situations involving these types of matters. For those wishing to challenge or defend a will, it is important that all statutory requirements are met and that pleadings and other documents are filed within the appropriate time frames. Attorneys experienced in probate litigation can assist clients in navigating this complex process.

Source: California Law, “Probate Code Section 8250-8254 “, November 01, 2014

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When someone wants to become a guardian of a child in California, they typically do so by filing a petition with the court. Other relatives of the child must be given notice in addition to the parents if they are living. If either one of the parents object, the court will hold a contested hearing at which the intended guardian will need to show that it is in the best interests of the child to appoint him or her as the child’s guardian.

The forms and processes involved can be quite complex. If the person is only wishing to become a guardian over the child, they start with filing a petition for guardianship. If a person is wishing to be appointed guardian of the child and his or her estate, then the initial filing is a petition for appointment of guardian of minor.

Notice must be given to the child’s parents, grandparents, siblings and half-siblings a minimum of 15 days before the hearing. The paperwork must be served by a person over the age of 19, and the person cannot be a party involved in the action. The court will assign an investigator to interview the child and the person filing for guardianship as well as the child’s parents if they are living. The investigator will make a recommendation to the court regarding whether or not the guardianship should be approved.

There are many reasons why a person may seek appointment as a child’s legal guardian, and this information is not reflective of an individual attorney’s advice. Since unexpected situations can occur, parents may wish to speak with an attorney experienced in estate planning in order to ensure that their child receives adequate care. He or she may be able to appoint a new guardian in the event of their untimely death.

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In drafting a will, a California resident may wonder whether all assets and belongings are covered by the document. In some cases, an individual might choose to clarify designations already included in assets such as life insurance policies and retirement plans. In other cases, there might be a concern about whether articles held in joint tenancy should still be listed in a will. It is helpful to recognize that only assets titled in one’s own name at the time of death are typically covered by the directions set forth in the will.

Assets such as retirement plans and life insurance policies typically include a beneficiary designation that stipulates how funds will be distributed upon one’s death. Securities or brokerage accounts are also dispensed based on transfer on death instructions. Even if these are listed in a will, the proceeds will be distributed according to designations made with the company managing these assets. Similarly, assets that are held jointly with a right of survivorship will be distributed to the remaining joint tenants regardless of any indications in a will. This is similarly true of community property held by married couples or domestic partners. Additionally, one’s will may not prescribe the distribution of a partner’s portion of community property.

Assets that are included in a living trust are managed according to the instructions contained in the trust document. Wills cannot counter these directions. In a revocable living trust, the testator typically serves as the trustee until becoming incapacitated or until death, at which point a successor named in the trust takes responsibility for managing the assets in the trust.

Although much of one’s estate may not be affected by a will, it may be important to have a will in place in case of unexpected changes such as the death of a beneficiary or the receipt of an unexpected asset. A lawyer may help in wording a will to express one’s wishes in case of such unexpected circumstances.

Source: The State Bar of California, “2. Does a Will Cover Everything I Own?“, October 17, 2014

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People in California who save for their dependents’ college tuition in a Section 529 college savings account are able to accumulate tax-free accounts. This is a major factor for why people choose this type of account, but what many people might not realize is that these accounts are also beneficial during estate planning.

Contributing small amounts to 529 accounts is effective, but some people prefer to give a large lump sum. One of the nice things about these accounts is that contributions are considered gifts, and up to $14,000 is excluded from gift taxes. The exclusion applies to each contributor, so a couple is able to put in $28,000 into the account tax-free annually.

Another considerable advantage of using a 529 account is the ability to change beneficiaries without tax consequences. If one person decides not to go to college or gets a full ride scholarship, the money could be given to fund another person’s college education. However, the new beneficiary must be related to the initial beneficiary. They must also be part of the same generation or a higher generation. Contributors could also get their money back with only a 10 percent penalty.

Using this strategy to reduce a person’s taxable estate is only one of many options that person might have to shield their assets from unnecessary taxation. Those who are seeking other ways to protect the value of assets when they are passed to the next generation might benefit from working with an estate-planning attorney. That attorney may be able to develop a strategy that provides for the interests of a client while offering ways to avoid undue tax burdens.

Source: MarketWatch, “Using 529 college savings accounts for estate planning“, Bill Bischoff, October 07, 2014

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A California resident may wonder about the preparation of a living will, which is a written expression that indicates how someone wants to be treated in given medical situations. An individual may detail wishes for or against life-sustaining measures. Similarly, preferences for tube feeding and other means of providing hydration and nourishment may be expressed.

It is critical that an individual clearly understand the implications of the language used in a living will due to the fact that some definitions may include unanticipated consequences. For example, an individual using a breathing device to address chronic obstructive pulmonary disease may be affected by noting that assisted breathing devices not be used for sustaining life. While one might presume that life-saving breathing machines refer to ventilators or heart-lung machines, the COPD equipment might fit the category of assisted breathing device and be withheld. It is also important to recognize the philosophical and religious implications of one’s decisions documented in a living will. While living wills are typically considered in light of terminal illnesses or injuries, it is also possible in most states to include conditions related to cases of a permanent unconscious state in which no brain activity is detectable.

A living will does not apply to situations that are unlikely to result in an end of life. Typically, this element of estate planning is intending to provide clarity of one’s wishes in cases where death is likely without intervention. One’s decision to refuse life-sustaining measures does not mean that pain relief solutions such as medication would be denied.

Someone who has definite opinions about end-of-life decisions related to providing or not providing life-sustaining treatment may want to review documents and definitions with an estate planning attorney prior to signing them. This will allow for clarification on issues such as COPD treatments and other issues to avoid misunderstandings.

Source: American Bar Association, “Estate Planning FAQ”, October 06, 2014

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