What Is A Revocable Living Trust And Why Should You Have One?

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As the holidays approach, you might be thinking about family more. You want to take care of your loved ones, and while it’s a hard subject to discuss, you need to make sure everything is prepared when something happens to you.  The holidays are a good time to put your affairs in order and make sure your estate is in place so that when that time comes, your family can get through the process as easily as possible. If you know anything about probate, you probably know how time-consuming and expensive it is. A revocable living trust creates the opportunity to avoid probate and is an amazing estate planning tool.

What Is A Revocable Living Trust?

So, what is a revocable living trust? A trust is an arrangement with a third party to hold assets that will eventually be passed to a beneficiary. A revocable living trust means that the stipulations of the trust can be changed while the trustor is living and capable, as their situation evolves. 

Why Set Up A Living Trust?

A lawyer and client go over paperwork for setting up a revocable living trust

In estate planning, setting up a living trust is recommended for a common reason – to avoid probate. Probate is the lengthy court process in which the passing of assets are determined by a judge. It can take months to several years depending on the case.

Many people don’t even have wills, let alone trusts. Wills are important to putting your affairs in order, but they cannot avoid probate. For assets to pass through a will, you must die first – unlike a living trust – and all assets must go through probate whether you have a will or not. Living trusts are usually able to bypass the probate process altogether, saving your loved ones time and money. 

If you live in San Jose or the greater Bay area, set up a free consultation with our estate planning attorneys to learn about living trusts. 

How To Set Up A Revocable Trust?

There are a few steps that go into setting up a living trust. You must set up the trust while you are alive. You will need to work with an attorney to figure out the trust’s specifications such as who assets will pass to and how they must pass. 

For example, you can create a joint living trust for yourself and your spouse. If one spouse dies, the assets will pass to the living spouse, and after their death, the assets will pass to whomever you name beneficiary next in line. You can stipulate that the assets or property only pass under certain conditions such as if your daughter graduates college. This allows you to control and protect your assets, even after your death. 

An attorney hands over keys to a property that was listed in the revocable living trust to the beneficiary.

After you’ve worked with an estate planning attorney to put together a trust, you’ll have to fund the trust. This requires you to place property and assets in the name of the trust. Instead of the property being under the name “John Smith,” it will be titled “John Smith, Trustee of the John Smith Trust.” Forgetting to fund your trust can result in added expenses upon your death and a lengthy process to distribute assets in probate. 

Living trusts aren’t right for every situation however, so you should consult with an experienced estate planning attorney before setting one up.

Live in San Jose or close by? Contact Lonich Patton Ehrlich Policastri to find out if a revocable living trust is right for you. 

What To Know When Becoming An Executor Of An Estate

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When an individual is appointed to be the executor of an estate, they are entrusted with many duties and responsibilities. The executor is required to act for the estate using ordinary care and diligence. It is important, especially in estate planning, to know the difference between an executor of an estate and a power of attorney.

What Is The Difference Between An Executor Of An Estate vs Power Of Attorney?

It is important when it comes to estate planning to know the difference between an executor of an estate vs power of attorney.  An executor is the individual who is responsible for managing all affairs of an estate of an individual who has died.  A power of attorney is an individual selected and specified on a legal document that that individual has the authority to act for another individual in legal or financial matters. 

The executor of an estate is different from the power of attorney when dealing with legal matters

What Is An Executor’s Responsibility With Estate Taxes?

The executor has a fiduciary duty to pay the estate’s taxes when there is enough money in the estate available to pay the taxes. Failing to pay an estate’s taxes even negligently is a breach of the executor’s fiduciary duty owed to the estate. If it is shown that the executor caused the estate to incur unnecessary taxes, then the executor may be charged for the part of the taxes that resulted from the executor’s action or negligence.

When an executor breaches a fiduciary duty, the executor may be personally liable for the consequences of that action. However, if the executor acted reasonably and in good faith, the court may excuse the breach.

What If There Is Real Estate Or Physical Property Involved With The Estate?

It is important to remember that an estate is not strictly limited to financial assets. There may be physical property involved with an estate as well.  An executor of an estate must keep track of all property that is involved in an estate. The law may include real estate property, bank accounts, cash, and even stock or bond certificates as property of the Estate. Our firm, Lonich Patton Ehrlich Policastri can help with specifications for those who have estates or are executors of an estate in San Jose or Santa Clara County.

An executor of an estate looks to the will to distribute property assets

What Are My Next Steps As An Executor In San Jose?

Paying the federal and state income taxes on the estate, including for the year the creator of the estate passed away, are only one of the many duties owed to the estate by the executor. If you have been appointed an executor or have concerns with an estate’s executor based out of San Jose, please contact our office for a consultation with our estate planning attorneys. The attorneys at Lonich Patton Ehrlich Policastri offer free 30-minute consultations. 

Please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

Tom Petty’s Estate is Having a Breakdown

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Tragically, Tom Petty passed away in 2017. He left behind his wife, Dana Petty, and daughters, Adria Petty and AnnakimViolette, from a previous marriage.

Before he passed away, Tom Petty had prepared an estate plan. Upon his death, Dana was appointed as the sole trustee of Tom Petty’s entire estate. In the documents, there was a provision included that required Dana, and Tom’s two daughters, Adria, and Annakim, to participate equally in the management of the estates’ artistic assets.

Unfortunately, it turns out that Tom Petty’s estate plan was not as precisely written as the lyrics he was famous for.

The Beginning of a Long Lititgation

Adria Petty and Annakim Violette filed a lawsuit against Dana Petty for the court’s interpretation of the term “participate equally” in regards to the estates’ artistic assets. The daughters believe that the term “participate equally” would mean that Adria, Annakim, and Dana each get a vote with majority rule. Dana did not have the same interpretation of the same term.

Dana Petty responded to the lawsuit by claiming that as sole trustee, she alone has the authority to create the entity that will manage the estate’s assets and that “participate equally” applies only to management of that entity. As a result, this disagreement of definition sparked an extremely long and arduous litigation to decide what the document’s language meant.

Determining the Meaning of Language in Estate Plans

When an estate plan has terms with an unclear interpretation, it will lead to many issues including expensive litigation. The court process for interpreting an estate document can be complicated when the language used in an estate document can be interpreted in multiple ways.

Firstly, In California, to determine what the settlor intended, the court will have the express language of the document examined. If the language is determined to be clear and definite by the court, the analysis will end and the matter is settled. However, if the court believes the language to be ambiguous, the court will then consider the circumstances under which the estate was created.

Secondly, and finally, if the court determined the document’s language to be ambiguous, the court will attempt to place itself in the estate creator’s shoes. The court will exercise its independent judgment of the estate creator’s intention by examining evidence that is uncontested from outside the document. For example, the court may consider when the document was created, if there the documents were created by an attorney, and what kind of state of health the settlor was in. If that is the case, the process could potentially be excruciatingly long no matter how large or small an estate may be.

How Do I Get Legal Assistance for Estate Planning?

Involving the court in determining your wishes is costly, time consuming, and frustrating for your beneficiaries. If you are interested in planning your estate, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri to assist in drafting your documents with the most clear and definite language possible.

Meanwhile, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

Reverse Mortgages: How it Works

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What is a reverse mortgage and why would I want it?

A reverse mortgage is a type of home loan which can be used for any purpose. Unlike a standard home loan where you make monthly payments, with a reverse mortgage, the lender makes payments to you.

A reverse mortgage provides a way to use the equity accumulated in your house without losing ownership of your house or increasing your monthly payments.

When Can I get a Reverse Mortgage?

To obtain a Reverse Mortgage, you must be at least 62 years of age and the house must be your primary home, where you live at least six months out of the year.

The amount of the Reverse Mortgage is affected by many factors, however generally the value of the Reverse Mortgage increase with your age and the value of your house.

How does a Reverse Mortgage Work?

There are two types of reverse mortgages available, Home Equity Conversion Mortgages (HECM) and proprietary reverse mortgage.

HECM are federally-insured, widely available and have no income requirements. Proprietary reverse mortgages are not federally-insured as they are borrowed through private lenders, however they allow for higher loan amounts. The choice of reverse mortgage that is best for you will depend on your circumstances and needs.

You as the homeowner get to choose how the reverse mortgage is received. The payments may be received monthly, lump sum, or as a credit line. Interest is only charged on the amount received and the interest is added to the loan balance. This means that you do not have to pay the interest up front. Additionally, as the payment from the reverse mortgage is a loan, it is not considered income and is not taxable.

Once you have received the payments, there are no restrictions on how the money may be used. The money can be used to supplement your income, pay debts, or even to buy a new home.

A reverse mortgage will continue until all borrowers permanently move out of the house, sell the house, or the last surviving borrower passes away. Once the reverse mortgage ends, the loan becomes due, which can be paid by the sale or refinance of the house.

Is There Any Cause for Concern with a Reverse Mortgage?

A reverse mortgage can provide invaluable assistance in retirement and is the one of the few ways to access the equity you have built up in your home without increasing your monthly payments. However, there are several things to be aware of and consider before you make the decision to get a reverse mortgage.

The first thing to be aware of is that reverse mortgages often have higher fees than standard mortgages. These fees are rolled into the reverse mortgage and will further reduce the amount of equity you have accumulated in your house.

Second, the loan amount becomes due when the house is sold. As the sale of a house may happen unexpectedly it is important to consider the likely hood of this happening and the impact the reverse mortgage will have on the sale.

A final consideration is the effect the reverse mortgage will have on your estate. As you continue to receive payments, the equity in your house is reduced which will affect the amount received by your heirs.

Is a Reverse Mortgage right for me?

A reverse mortgage is a financial tool available to those who understand how the loan works. When considering a reverse mortgage, it is important to understand as much as you can about the reverse mortgage process, and balance that with your needs.

If you are thinking about a reverse mortgage loan, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri. We offer free half-hour consultations.

Please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

Aretha Franklin Did Not Have a Will

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But Did Aretha Franklin Need a Will?

Tragically, Aretha Franklin passed away on August 16, 2018 from pancreatic cancer. She left behind four sons but no will or estate plan. Because she did not have a will, during the court process all her assets will be made public. Aretha Franklin’s estate is estimated to be around $80 million and includes financial accounts, personal and real property, and music copyrights. The law of Michigan, where Aretha Franklin died, requires that her assets be divided equally between her four sons. While this may seem simple, it is very common when there is no will for the estate to be contested.

For example, Prince’s estate has been highly contested by the executor of his estate, Comerica Bank and Trust, and his heirs – his six siblings – over the value of his estate and how it should be divided.  Prince passed away in 2016 and his $200 million estate has paid lawyers and consultants over $5.9 million while his heirs have yet to receive anything. Lawyers for three of Prince’s heirs claim that it is a “legitimate concern” whether Prince’s heirs will receive anything at all.

If Aretha Franklin had created a trust, her estate would remain private, fees would be reduced, and her heirs would receive their portion of the estate much faster.

Do I Need a Will?

Over half of Americans do not have a will. Most claim they have simply not gotten around to it and many believe that they do not own enough property to pass down.

While most Americans will not leave behind an estate as large as Aretha Franklin or Prince, a will or trust is still extremely valuable.

It is important to remember that your debts as well as your assets are included in your estate. With a will, you can dictate which debts are paid first, this could allow specific property to not be used to pay debts.

Another crucial element is guardianship of children. When there is no will, the court will appoint a guardian. The court will generally appoint the surviving spouse as guardian. However, if the spouse is unavailable the court will appoint a grandparent, and failing that, the next closest relative. With a will, you may nominate a specific guardian who you feel will be best equipped to care for your children.

One more significant factor to consider is who you want, or who you don’t want to execute your wishes. In California if you do not leave a will, your family members may petition to be the administrator of your estate. The court will appoint the petitioner as an administrator if all family members with higher priority decline to serve as an administrator. With a will, you can appoint an executor who you feel is most capable. Alternatively, you may spell out in your will who you do not want to execute your will.

There are many tangible benefits of a will, however the process of drafting a will can be complex. If you are considering a will or another form of estate planning, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri. We offer free half-hour consultations.

Please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

GIFTING REAL ESTATE TO FAMILY MEMBER CARETAKER: RED FLAGS

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Giving gifts to loved ones late in life is a meaningful way to make family and friends feel cherished. Gifts of real estate to family and friends may show appreciation, but a gift of real estate made late in life to a family member or caretaker can raise several red flags. Is the donor susceptible to fraud or undue influence by the recipient of the gift? Does the donor have sufficient mental capacity to make the gift? To address these red flags, courts require certain documentation or evidence if a gift is contested.

One of the court’s primary concerns regarding gifts from adults late in life is whether the gift was influenced by fraud or undue influence, especially when gifts are given to people who have close relationships with the adult. Therefore, California law requires courts to apply a legal presumption – an assumption that any gift from a dependent adult (person over 65 who is unable to provide for his or her personal needs) to a “care custodian” was the product of fraud or undue influence. (Cal. Prob. Code, § 21380.)

A “care custodian” is a person who provides health or social services to a dependent adult. A “care custodian” is not someone who provided services to a dependent adult if the custodian had a personal relationship with the dependent adult at least 90 days before providing health or social services, at least 6 months before the dependent adult’s death, and before the dependent adult was admitted to hospice care if he/she was admitted.  (Cal. Prob. Code, § 21362.)  The person in favor of the gift can rebut, or oppose, the presumption of fraud or undue influence with evidence that the gift was not the product of fraud or undue influence.  (Cal. Prob. Code, § 21380.)

Courts will not assume the gift is a product of fraud or undue influence if a “certificate of independent review” is executed with the transfer. A certificate of independent review shows the court that an independent attorney consulted with the person making the gift about the nature and consequences of the gift and attempted to determine if the intended gift was the result of fraud or undue influence. This consultation must occur out of the presence of the any heirs or proposed recipients. The certificate is signed and given to the person making the gift.

The court will not assume the donor’s family members and cohabitants received gifts from a dependent adult by fraud or influence. (Cal. Prob. Code , § 21382.)  However, gifts to family members and cohabitants will be invalid if the family member or cohabitant drafted the transfer document themselves. Family members and cohabitants are also subject to claims that the donor’s gift was subject to fraud or undue influence. (Cal. Prob. Code, § 6104.) They may also be subject to a claim that the donor did not have sufficient mental capacity to make the gift.

To prove undue influence, one must show the donor acted under excessive persuasion that overcame his/her free will. In California, the court will assume undue influence occurred if the party contesting the gift can prove three elements: (1) the existence of a confidential or fiduciary relationship between the donor and the person allegedly asserting undue influence over the donor, (2) active participation by the alleged influencer in the creation of the transfer document, and (3) an undue benefit on the alleged influencer (typically the receipt of the gift).

A gift may also be contested on the basis of the donor’s lack of mental capacity at the time the gift was made. The court can consider testimony and documentation showing the donor may or may not have been mentally competent to make the gift while alive.

Gift of real estate to family members and caretakers can be complicated and raise red flags that the donor, recipient, or other family members did not intend to face. If you are contemplating giving a gift to a family member or caretaker, receiving a gift from a family member, or contesting a gift to a donor’s family member or caretaker, please contact one of the experienced attorneys at Lonich Patton Erlich Policastri. We offer a free half-hour consultations.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

PROTECTING YOUR ESTATE DURING DIVORCE

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Going through divorce may be one of the most challenging and stressful ordeals you will experience. There are numerous questions you have to answer, a slew of documents you have to dig up, and brings an incredible amount of emotional turmoil. While you may be ready to forget your ex-spouse completely, do not forget to change your estate plan.  If you have a previous plan, you likely named your ex-spouse as the successor trustee, executor, power of attorney, and/or beneficiary. It is very unlikely that you will want to leave your ex-spouse in that role, making it vital to change your estate plan.

In a revocable trust, the trustor or trustee, not the beneficiary, has control over when and if the benefits are distributed. However, when you die, whomever you named as executor of your will or successor trustee of your trust will have control over when and if the benefits are distributed. It is likely that you would designate your spouse as executor and successor trustee during marriage, so it will be important to have a new estate plan done, in order to designate a new person to fill these rolls. It is your decision who will fill the roles. Your executor or trustee does not need any special training, but must be an organized, prudent, responsible, and honest person. Additionally, you will want to consider who is named as beneficiary on any retirement accounts, life insurance, or additional benefits. If you had named your spouse, you would want to give your estate attorney at least one new person who would be a beneficiary.

While most assets are subject to your estate plan at death, there are some exceptions. These exceptions include life insurance policies, IRAs, and other tax-deferred retirement plans. These are distributed according to beneficiary designations, which override the designation in your will or trust. It is important to update beneficiary designations right after the divorce, if you choose not to during the process, as just updating your estate plan will not affect who gets the benefits of these plans.

Further, if your ex is your agent on your durable power of attorney for property, you should consider changing his/her name immediately to prevent your ex from having unlimited access to bank accounts or financial assets. Additionally, you should name another person as your agent to make health care decisions for you if you are unable to make your own decisions. It is important to also name an alternate agent to act for you if your first choice is not willing, able, or reasonably available to make decisions for you.  You may choose to limit the authority of your agent, but if you choose not to limit his/her authority, they may, but are not limited to, consent or refuse care, treatment, or procedures, agree to tests, surgery, and medication, and designate anatomical gifts. Who you choose to make these decisions should be someone you believe understands and will respect your wishes.

Finally, you may also be wondering how to provide for your minor children in the event of your death, if your ex has no custody rights over them. You should nominate a guardian to supervise and care for your child until he/she is 18 years old. Under California law, a minor child would not be legally qualified to care for him/herself, or to manage his/her own property. You can make the designation in your estate plan.

If you are seeking information or counsel regarding estate planning or protecting your property during divorce, please contact one of the experienced attorneys at Lonich Patton Erlich Policastri – we offer free half-hour consultations. We also offer free wills to all of our family law clients during the process of their divorce.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

HOW TO AVOID CONFLICT IN ESTATE PLANNING

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Some say, “if there is a will, there is a family fighting over it.” But a brawl between loved ones isn’t necessary if these 6 tips are followed.

1. Make A Plan!

You do not want to leave uncertainty and confusion for your loved ones when you pass. Do not take a “they will figure it out” approach. This is most likely lead to confusion, conflict, and possibly court. Be detailed in your wishes and instructions. If you fail to be clear or make a plan all together then it will be up to the court in deciding who is given what.

There are several options available when deciding an estate plan and what is best for your best friend may not be best for you. Therefore, it may be wise to meet with a knowledgeable estate attorney who can guide you through your planning options.

2. Update On The Regular

Once you make a plan – keep it updated. This does not need to be a weekly event, but it does need to happen when there is a change in life circumstances. These events may include: a divorce, a marriage, change in property ownership, or having a baby.

3. Do Not Rely On Family Utopia

Even if your family gatherings are like a glimpse into Utopia itself, do not rely on everyone agreeing all the time. Life is complicated and constantly changing. Therefore, if a child’s life circumstances change their goals may no longer align with everyone else’s. Change is normal in life and your estate plan should reflect that.

4. Communicate

You are not required to talk to your loved ones about your plans, but this tip is encouraged. Family input may be beneficial and it will lessen the chances of someone being surprised later on. It is also important to communicate in order to have everyone on the same page regarding issues such as: plans for a disabled child, the succession of the family business, or for the continued enjoyment of a vacation home. Although it may be an awkward conversation, it is important to have these discussions.

5. Remove Assets From Probate

Probate is something most people try to avoid and if you want your loved ones getting the most from what you left them, you will too. Two common ways to avoid probate is through revocable trusts and beneficiary designations. Another way to help avoid probate is to make sure the named beneficiaries in other asset documents are consistent with your whole plan. However, once again, it is important to discuss what estate plan options are best for you with an attorney – a revocable trust may not be it and you may be able to avoid probate through other avenues.

6. Consider Someone Outside The Family In Charge Of Assets

Some good choices are a law firm or trust company. By naming someone not in the family, it will help reduce the risk of disharmony. It is crucial to make a smart choice in appointing a Trustee and Agents under Powers of Attorney. You should not make this decision based solely on who is your favorite to hang out with. There are a multitude of factors to take into consideration and you should speak openly with your attorney to decide who would be best for the position.

If you are considering creating an estate plan and would like more information, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

CHARITABLE BEQUEST

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In 2016, charitable giving amounts reached record levels – $390.05 billion to be exact. This increase and the overall size of charitable contributions is testament to the integral role charities play in our lives. Thus, for people who have given to charities and organizations throughout their lives many wish for its continuance after their death.

Can I give assets to a charity or organization after I die?

An estate attorney can draft a charitable bequest provision for individuals who wish to bequest certain assets to an organization or charity. A charitable bequest is a written statement in a person’s will that directs a gift to be made to a charity upon the death of the testator, the maker of the will. However, there are other options available and it is therefore important to speak with an attorney to best fulfill your wishes.

What can I bequest to a charity?

There are many things you can give. A set money amount or real property, such as a home or land are two options. Additionally, an individual may bequest tangible personal property such as: a jet, car, artwork, antiques, or collectables. It is important to consider what the charity or organization can use best; some would greatly appreciate a parcel of land, while others would be better served with receiving money.

How do I bequest these assets?

There are different formats a testator may choose from.

The most common is called a general bequest. This allocates a set amount of money paid to a particular beneficiary. It is charged against the estate at death and must be satisfied.

The next is called a special bequest. This allocates a particular property or dollar amount to be awarded to a beneficiary. However, if you are considering to bequest a property you MUST own that specific property at your death – no other property will satisfy. A special bequest is also the first type of bequest satisfied upon an estate distribution.

A residuary bequest is a third form. This allows the beneficiary to receive assets that remain in the estate after all other bequests, as well as any tax or administrative costs, have been satisfied.

The final form is a percentage bequest, where a set percentage of the estate’s value is given to a beneficiary. This allows the charity or organization to benefit from the estate’s growth during the donor’s lifetime.

If you are considering ­­­­­­bequesting to a charity and would like more information, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

WHO TO PICK AS AN EXECUTOR OF YOUR WILL

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Executors of wills have an important job. They are the person who will collect assets of your estate, protect the estate’s property, pay valid claims against the estate, and will distribute estate property to beneficiaries. The work can be extensive and complicated for someone who is not a proper fit, therefore it is essential to pick the right person.

If a person is chosen and does not have the ideal qualities, the estate may find itself being contested. This takes time and is also costly. Therefore, when choosing an executor it is important to look for qualities such as honesty, organization, and being a good communicator.

Having someone who is honest speaks for itself, but having an organized person is important too. Being organized will help your executor effectively distribute and manage your estate. Choosing someone with good communication skills is also helpful since this person will be talking with a variety of people and will be dealing with sensitive situations. Also take into consideration the location of who you are considering to choose. An executor may have to appear in court, check the property mail, and handle the property’s maintenance. These jobs may be easier for someone located close by versus someone out of the area.

There are a multitude of options for who can be your executor. An obvious choice is your partner or spouse. They are most likely to know your intentions for your estate. But if they are later in years, they may not be able to handle everything that needs to be done.

Children are another popular choice. For this option, take into account family dynamics; if you know choosing one child as executor and excluding another would cause problems then it may be best to name both as co-executors. This may be an option if both hold the qualities mentioned before. Also naming siblings as co-executors allows them to divide up responsibilities so not all duties fall on one child alone. However, if one child is obviously not qualified to be an executor it may be better to exclude them. In these situations, it is helpful to discuss the situation with your children that way they are able to hear from you why you chose one sibling over another.

If you do not have a spouse or children to name as executor, don’t despair. You can name other close family members or friends. Just make sure they have an idea of your intentions for your estate and possess the qualities that will help distributing the estate successfully.

However, if none of the above options are appealing, or if you have a particular complex estate then you may want to hire a specialist such as an attorney, bank, or trust company. Although this option costs an additional amount, these entities are experts in closing out an estate and distributing the property to beneficiaries. There is also less stress involved since they are not personally involved in the estate and are not mourning the loss of someone while distributing their property.

Whomever you choose, you must communicate with that individual that you are considering them to be your executor. This is an important role and they should be willing to do the job. If they decline, try not to take it personally; it’s a large job and there are plenty of options.

If you would like more information about estate planning, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

 

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LONICH PATTON EHRLICH POLICASTRI

Phone: (408) 553-0801
Fax: (408) 553-0807
Email: contact@lpeplaw.com

1871 The Alameda, Suite 400
San Jose, CA 95126

Located in San Jose, Lonich Patton Ehrlich Policastri handles matters for clients in northern California, specifically San Jose and Silicon Valley. Our services are available to anyone within the following counties: Santa Clara, San Mateo, Contra Costa, Santa Cruz, Monterey, San Benito, and San Francisco. For a full listing of areas where we practice, please click here.

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