Probate Archives - Page 2 of 2 - Lonich Patton Ehrlich Policastri

What is Probate and Why Should I Avoid It?

February 21, 2014/in Estate Planning, Probate /by Michael Lonich

Probate is a court process that is known for being time-consuming and expensive. It is also a public process that makes personal information about your assets and debts part of the public record. If you die without a will, the probate process can be a nightmare for your family. However, even if you have a well-written will, the probate court still must oversee the payment of your debts and distribution of your property. These are just a few of the reasons why many people want to avoid sending the estate, and oftentimes their family, through the probate process after their death.

To avoid the probate system entirely, you will need to use an estate planning vehicle other than a will to transfer property after your death. For example:

Life insurance: Life insurance policies generally pass outside of probate as long as there is at least one named beneficiary.
Retirement accounts: Similarly, retirement accounts, including IRAs and 401(k) plans, pass outside of probate as long as there is at least one named beneficiary.
Joint tenancy real property: If you own a home with your spouse (or any other individual) as joint tenants with right of survivorship (as opposed to tenants in common), your ownership interest will be “extinguished” upon your death and the remaining owner will own the property outright as a matter of law.
Joint tenancy bank accounts: Bank accounts may also be held in joint tenancy so that when one spouse (or account holder) dies, the other spouse (or account holder) is automatically the sole owner of the account.
Pay-on-death accounts: Selecting a pay-on-death beneficiary for bank accounts or investment accounts allows you to designate who your accounts will be transferred to upon your death without the need for probate.
Trusts: A living trust is a legal document that, much like a will, contains instructions for what you want to happen to your property when you die. But, unlike a will, a living trust can avoid probate at your death. While you place your property and assets (i.e., your family home) in the trust, you maintain control over all trust assets during your lifetime. When you are no longer alive, your property can be transferred to your designated beneficiaries in a timely manner without going through probate.

Trusts are a favorite of estate planners because they are simple, flexible and effective. Trusts can be used to easily transfer property to family members or charitable organizations at death. In some circumstances, trusts can also be utilized to decrease or minimize estate taxes.

If you would like to learn more about trusts or avoiding probate in general, call Lonich Patton Erlich Policastri to schedule a free half-hour consultation. Our attorneys are passionate about estate planning and have decades of experience handling complex estate planning matters, including wills and living trusts. If you are interested in developing an estate plan or reviewing your current estate plan, contact the experienced estate planning attorneys at Lonich Patton Erlich Policastri for further information.

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.

Wise Beyond His Years: Paul Walker’s Estate Plan

February 13, 2014/in Estate Planning, Probate /by Michael Lonich

Paul Walker was not known for being one of the more prolific or intelligent actors of his era. Even so, the young actor made some sharp estate planning decisions during his short life, probably due to top-notch legal advice. Even so, his estate plan could have been better. Regardless of whether your estate is anything like Paul Walker’s $25 million estate, there are some great lessons* to be learned from Mr. Walker’s estate plan.

The Good

Paul Walker died at the much-too-young age of 40. However, he was smart and recognized that even young people need estate plans. Walker signed his will at 28 years old—an age when most young men still believe they are invincible. He should be commended for taking control of his future for the benefit of his loved ones. Walker realized that accidents happen, and he was prepared. You should do the same.

Walker was survived by his 15-year-old daughter, Meadow, and he privately provided for her future with a trust. Unlike a will that must be processed through the state court system, trusts are completely private and avoid the onerous probate process. Trusts are relatively easy to create, are protected from public scrutiny, and most importantly, can help your loved ones get the assets they need much faster than in the case of a will.

The Bad

Although it is great that Walker named a guardian for his minor child (he named Meadow’s grandmother—his mother), he should have updated his choice with the passage of time. In 2001, his mother was 13 years younger and probably the most appropriate option. However, today, a younger family member could have been a better option in the event that his mother was not up to the task or physically incapable of being Meadow’s guardian.

Walker had both a will and a trust, which was smart at the time. Nevertheless, when he first created those documents, Fast and Furious had not become the monstrous success it is today. His financial picture has changed and his estate planning documents should have reflected those changes. Over a decade ago, he probably had no idea how much money he would be leaving his daughter; he couldn’t have. Furthermore, Walker’s estate will have to cover significant tax obligations before his beneficiaries receive their share; this obligation could have been avoided or reduced with some creative estate planning and trust creation.

The Ugly

Walker’s long-time girlfriend, the woman he reportedly wanted to marry, was apparently left with nothing. Boyfriends and girlfriends have no legal relief in this sad scenario, and it happens far too often. It goes without saying that Walker would have wanted to take care of his girlfriend for the rest of her life. However, since he failed to update his estate plan, she probably will not receive a penny.

You should consider your estate plan to be a living and breathing document; when your life changes, your estate planning documents should change along with it. This is why having a great relationship with a reputable estate planning attorney is so important. If you are interested in creating an estate plan or have any questions regarding your current estate plan, please contact the experienced estate planning attorneys at Lonich Patton Erlich Policastri for further information. The attorneys at Lonich Patton Erlich Policastri have decades of experience handling complex estate planning matters, including living wills and trusts, and we are happy to offer you a free consultation.

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.

*Post inspired by: Danielle and Andrew Mayoras, “Five Estate Planning Lessons From The Paul Walker Estate,” from Trial and Heirs: The Legacy Experts. Find the original article here: http://trialandheirs.com/blog/celebrities/paul-walker-estate-good-estate-planning-lessons

Can A Will Written on a Tablet Be Valid?

July 30, 2013/in Estate Planning, Probate /by Michael Lonich

Apparently so, according to Ohio Probate Judge James Walther. Last year, Javier Castro needed a blood transfusion but chose to refuse the health care because of his religious beliefs. Unable to find a piece of paper and pen, Castro wrote and signed his will with a stylus on his Samsung Galaxy tablet while his brothers watched – and it’s valid. Judge Walther explained that Ohio law requires wills to be written, signed, and witnessed (much like in California) and technically, Javier’s electronic will met each of those requirements. Does this mean you should consider drafting up a will on your tablet right now and forego that visit to your estate planning attorney? Probably not.

The requirements for a valid will in California are quite similar to those in Ohio. In California, a will must be in writing, signed, and witnessed by two individuals in the presence of the testator.* However, unlike in Ohio now, there is limited case law regarding the validity of electronic wills. In fact, very few states have addressed the issue.**

You might be wondering: so many aspects of our lives nowadays are electronic – from bills to communication devices – so why shouldn’t my will be electronic as well? Why are there so many guidelines to creating a proper will? Having an appropriately designed and executed will ensures your wishes are carried out in the manner you intended them to and decreases the possibility of fraud. With little to no law to rely upon, until the California legislature develops a statute addressing what is required of an electronic will, it would be anybody’s guess whether your Samsung tablet will would be considered valid and probated in this state. Therefore, until that happens, it would be prudent to continue creating your will the traditional way – with your estate planning attorney.

If you are interested in creating an estate plan or have any questions regarding your current estate plan, please contact the experienced estate planning attorneys at Lonich Patton Erlich Policastri for further information. The attorneys at Lonich Patton Erlich Policastri have decades of experience handling complex estate planning matters, including living wills and trusts, and we are happy to offer you a free consultation.

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.

*Cal. Prob. Code §§ 6110 – 6113.

**Nevada is one of the few states that have statutes concerning electronic wills (http://statutes.laws.com/nevada/title-12/chapter-133/execution/133-085).

Costs of a Conservatorship

July 19, 2012/in Estate Planning, Probate /by Michael Lonich

There are approximately 1,500 elderly and incapacitated adults whose lives and finances are overseen by Santa Clara County’s probate court. A recently concluded six-month Mercury News investigation found a small group of the county’s court-appointed personal and estate managers are handing out costly and questionable bills — and charging even more if they are challenged. (Full article: http://bit.ly/QJIURm)

Reportedly, Santa Clara County judges are taking this investigation seriously, and will be making changes within a matter of weeks. To help you understand how a conservatorship can get costly, we included a chart below, which was graciously provided to us by Karen de Sá and Doug Griswold at the Mercury News. You can click on the chart to make it larger.

If you are interested in learning more about creating a conservatorship or estate planning in general, contact the experienced attorneys at Lonich Patton Erlich Policastri for further information.

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.

When it Might be Appropriate to Have Your Parent Conserved

February 13, 2012/in Estate Planning, Probate /by Michael Lonich

Your parents have always been put together and independent. However, as time passes and you notice them becoming forgetful or unable to handle their day-to-day affairs, you are unsure of how to proceed as their mental states begin to deteriorate. Should they be conserved?

Generally, the legal definition of capacity is the mental ability to adequately function. In California, the Probate Code allows a court to appoint a conservator of the person for a person who is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter; a conservator of the estate for a person who is substantially unable to manage his or her own financial resources or resist fraud or undue influence; or a conservator of the person and estate for a person described in both of the previous categories.

If a conservator is appointed, he will be responsible for managing your parent’s affairs. The conservator does not have to be a family member, although it often is. Once appointed, the conservator will owe a duty of care to your parent and will be held accountable by the court.

There are other options, however, if conservatorship is too extreme. Sometimes, elderly parents realize they need assistance and ask for it. In this scenario, families can avoid the expense and emotional turmoil of having a parent conserved and family members can assist parents with their finances or hire a professional. Other options include creating a durable power of attorney for property or a living trust. These documents generally appoint an agent or trustee to manage your parent’s financial affairs.

If you are interested in learning more about ensuring your parents are able to manage their day-to-day lives as they grow older, please contact the experienced estate planning attorneys at Lonich Patton Erlich Policastri for further information. 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 include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Trusts Offer Privacy During Probate

April 5, 2011/in Estate Planning, Probate /by Michael Lonich

Elizabeth Taylor recently passed away with an estate estimated to be worth anywhere from $6 million to $1 billion. Radaronline, an internet based tabloid, has obtained the Notice to Creditors filed with the Superior Court of Los Angeles. This document gives creditors notice that their client has passed away, allowing creditors the opportunity to file a claim against the estate requiring that payment be made before assets are distributed to the beneficiaries. The court filings reveal that Elizabeth Taylor’s trust was created June 23, 1998, a few months after she experienced a number of medical issues and underwent hip replacement surgery. Although information like this has been made public, tabloid sites such as Radaronline cannot obtain a complete copy of the trust from the court because the trust, unlike a will or the Notice to Creditors, does not become part of the public court file in California. Thus, the trust not only helps Elizabeth Taylor’s estate avoid probate, it also offers anonymity and privacy to Ms. Taylor and the trust beneficiaries. The privacy offered by trusts is an additional benefit that should be considered when determining the appropriate estate planning vehicles to use.

If you are interested in learning more about the probate process or how a trust might fit into your estate planning needs, please contact San Jose Probate Attorneys at Lonich Patton Erlich Policastri, LLP. 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 include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Choosing the Right Executor

March 31, 2011/in Estate Planning, Probate /by Michael Lonich

Recently, the New York Times published an interesting article advising individuals on how to choose the right executor for an estate. An executor is an individual responsible for an estate before the estate is closed (transferred to its beneficiaries).

The author indicates how estate planning in 2011 is particularly burdensome on executors because of the recent tax law changes President Obama signed in December of 2010. In short, portability (the ability to pass the federal estate tax exclusion to a surviving spouse, described in a previous post), must be if at all exercised by the executor. This new responsibility coupled with the traditional responsibilities of an executor will require an organized and honest individual who has the best interest of your beneficiaries at heart. The article continues with other practical considerations when choosing an executor including why a professional or a family member may be a more suitable executor, for the full New York Times article click here.

Additionally, it is a prudent idea for individuals to review their estate planning documents because of the recent estate planning changes in 2011. Currently the new tax laws affecting Estate Planning are only set to be active for 2011-2012.

If you are interested in learning more about Estate Planning, please contact San Jose Estate Planning Lawyers at Lonich Patton Erlich Policastri, LLP. 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 include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

What is Probate and Why Should I Avoid It?

Wise Beyond His Years: Paul Walker’s Estate Plan

Can A Will Written on a Tablet Be Valid?

Costs of a Conservatorship

When it Might be Appropriate to Have Your Parent Conserved

Trusts Offer Privacy During Probate

Choosing the Right Executor

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