estate planning Archives - Lonich Patton Ehrlich Policastri

Executor of an estate works on paperwork

What To Know When Becoming An Executor Of An Estate

September 13, 2019/0 Comments/in Estate Planning /by Michael Lonich

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

July 19, 2019/0 Comments/in Estate Planning /by Michael Lonich

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

March 31, 2019/0 Comments/in Estate Planning /by Michael Lonich

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

February 28, 2019/0 Comments/in Estate Planning /by Michael Lonich

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

June 8, 2018/0 Comments/in Estate Planning /by Michael Lonich

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 Ehrlich 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.

Estate Planning for Special Needs Children

June 16, 2017/in Estate Planning /by Michael Lonich

Having a child with special needs brings countless challenges to overcome. Parents of these children, regardless of age, are their biggest advocates, providers, and caretakers. Life is unpredictable, but if parents have a well thought out plan they can take comfort in knowing their child will continue to be provided for. Therefore, it is essential that parents of a special needs child plan early regarding their estate.

Setting out an estate plan to provide for a child with special needs has its own unique hurdles. One is to design a plan that supplements a child’s government benefits while enhancing the quality of the child’s life. As a parent, if you leave your child too much outright this may risk them losing their public benefits. Another hurdle to overcome is to figure out how to provide for proper supervision, management, and distribution of the inheritance through a third party created and funded Special Needs Trust. The task of estate planning may feel daunting at times, but with a knowledgeable attorney and good organization parents can execute a successful estate plan.

The ultimate goal is to preserve public benefits for a disabled child. Parents will want the plan to provide a lifetime of money management for the child’s benefit, protect the child’s eligibility for public benefits, and ensure a pool of funds available for future use in the event public funding ceases or is restricted.

These goals can be accomplished by executing a Special Needs Trust. If properly drafted and administered, a Special Needs Trust will allow the child to continually qualify for public assisted programs even though their parents have left them an inheritance. This occurs since the assets are not directly available to the child and because this type of trust has strict limits on the trustee’s availability to give money to the child.

Parents who draft a Special Needs Trust will appoint a trustee to act as the child’s money manager. This is a very important decision because it will ensure the long-term success of the Special Needs Trust. Parents should closely counsel with their attorney before making this selection.

Parents may also wish to appoint a guardian or conservator. A conservatorship or guardianship are court proceedings that designate a person to handle certain affairs for an incapacitated person. Where a conservator cares for the estate and financial affairs, a guardian is responsible for personal affairs such as where the child lives or what doctor they see.

Parent’s planning will ensure their child is cared for in the best way possible. But it is important to plan now. If you are considering drafting an estate plan and would like more information about Special Needs Trusts or other options available, please contact the experienced estate law attorneys at Lonich Patton Ehrlich 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

Understanding the Impact of the Spousal Fiduciary Duty on Estate Planning

March 21, 2017/0 Comments/in Estate Planning, Family Law /by Michael Lonich

We have outlined the spousal fiduciary duty on this blog before; now, we’re delving a bit deeper to discuss the impact of the spousal fiduciary duty on estate planning. Traditionally, California courts rely on a common law burden-shifting framework when confronted with the possibility that a spouse has unduly influenced his/her spouse’s estate planning decisions. However, a 2014 case from a California Court of Appeal—Lintz v. Lintz— took a different approach, and instead, relied on the statutory spousal fiduciary duty articulated in California Family Code section 721 to resolve an estate planning/undue influence claim.

The common law framework provides that the person alleging undue influence bears the burden of proof. However, the challenger can shift the burden to the proponent of a testamentary instrument by establishing, by a preponderance of the evidence, three elements: 1) a confidential relationship, 2) active procurement of the instrument, and 3) an undue benefit to the alleged influencer.

Departing from the common law, the Lintz court—faced with an allegedly abusive wife who intimidated her husband into amending his trust to her tremendous benefit and to the extreme detriment of her stepchildren—looked to Family Code section 721 when it decided in favor of the husband’s estate. Section 721 creates a broad fiduciary duty between spouses that demands a duty of “the highest good faith and fair dealing.” Further, neither spouse may take unfair advantage of the other. As a result, if any inter-spousal transaction advantages only one spouse, a statutory presumption arises under section 721 that the advantaged spouse exercised undue influence. The presumption is rebuttable—the advantaged spouse can demonstrate that the disadvantaged spouse’s action was freely and voluntarily made, with full knowledge of the facts, and with a complete understanding of the transaction.

California Family Code section 850 describes three categories of inter-spousal transactions: 1) community property to separate property, 2) separate property to community property, and 3) separate property of one spouse to separate property of other spouse. Notably, the section does not consider transferring community or separate property to trusts.

The court concluded that section 721 applies because section 850 does include property transferred to revocable trusts—in Lintz, Wife’s undue influence caused Husband, via his trust, to transmute a large part of his separate property to community property. Accordingly, the court held that Family Code section 721 creates a presumption of undue influence when one spouse names the other as a beneficiary in a revocable trust.

Criticism of the decision abounds—all estate plans that name a spouse as a beneficiary, by their very nature, benefit one spouse. In turn, use of the Family Code undue influence presumption threatens to disturb all testamentary instruments, and litigation may flood the family courts as spouses seek to rebut the seemingly automatic presumption that Lintz creates. On the other hand, some commenters believe Lintz does not indicate a new paradigm, but rather, showcases a court’s eagerness to remedy the serious injury inflicted by a spouse’s egregious influence.

At the very least, the Lintz case does demonstrate that estate planning and family law are deeply intertwined. Consulting with an attorney to learn how a marriage or divorce can impact your testamentary wishes is always wise. If you have any questions about your family law and/or estate planning needs, please contact the experienced attorneys at Lonich Patton Ehrlich Policastri—we offer free half-hour consultations.

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.

SOURCES:

California Family Code section 721

California Family Code section 850

Lintz v. Lintz (2014) 222 Cal.App.4th 1346.

Lonich Patton Erlich Policastri In The Community!

February 9, 2017/0 Comments/in In the Community /by Michael Lonich

Mock trial is a great way to learn the practical tools of the legal trade. Just ask Lonich Patton Ehrlich Policastri attorney, Bobby Khalajestani, who competed in several moot court competitions during law school and was a member of Santa Clara Law School’s Trial Team! Now though, Bobby is taking a seat at the judges’ table–in early February, he judged the 2017 Santa Clara High School Mock Trial Tournament. In a mock criminal trial, over 400 participating students had to get several statements in during pretrial motions, make objections based on the Evidence Code, conduct direct and cross examinations, and give opening and closing statements. Bobby reports that everybody competed at a very high level and displayed great court room skills! The tournament is ongoing as the students progress through multiple rounds, so be sure to check out the competition schedule if you would like to watch these future lawyers in action.

Congratulations to the tournament’s participants, and good luck to everybody still in the game!

For more information about Bobby or any of our firm’s attorneys, please contact Lonich Patton Ehrlich Policastri—we offer free half-hour consultation appointments to assess your family law and estate planning needs.

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

Estate Planning for Millennials

September 28, 2016/0 Comments/in Estate Planning /by Lonich Patton Ehrlich Policastri

While estate planning may sound like an activity reserved for the baby boomer generation, even Millennials can get in on the fun! Further, estate planning is not only for people with ample assets—planning for your future can extend to healthcare decisions and even your Facebook account. Of course, thinking about death—especially one’s own—is hard, but there are many benefits to be reaped from laying out a few guidelines for your loved ones.

To begin, estate planning at a young age may not involve complex financial considerations, but there are two key areas to focus on: healthcare and personal property.

First, once you turn 18 years old, family members no longer have the legal right to access your medical records, and should you become incapacitated, your family would not be able to speak to your doctors or make medical decisions on your behalf. Estate planning ensures that in the event of your incapacitation, your health is taken care of according to your wishes and by people you trust—

1) Advanced Healthcare Directive: A legal document in which you detail what medical actions should be taken if you are incapacitated or unable to make decisions on your own. This document can be used to record your preference (or not) for a “do not resuscitate” order.

2) Durable Power of Attorney: A legal document which, should you become incapacitated, gives power to a person of your choosing to make medical or financial decisions on your behalf. A durable power of attorney works in conjunction with an advanced healthcare directive to ensure that your health preferences are understood and heeded.

3) HIPPA Release Form: This form allows people listed on your advanced healthcare directive to access your medical records. Access to your records makes it easier for your designated caregivers to make informed decisions regarding your health.

Second, you may not have a lot of assets, but most likely, you do have some treasured possessions. To prevent your assets from being waylaid by intestacy (in which state laws determine how your property is distributed), consider making a will or trust—

4) Wills and Trusts: A will and/or trust details to where and to whom your assets will go after your death. While you may be content to let intestacy laws distribute your estate, creating a will or trust can streamline the process and assure your relatives that they are honoring your true wishes. Importantly, besides money, you should consider other cherished aspects of your estate. First, your pet—who will take care of your beloved fur friend? Second, consider family heirlooms passed down to you through grandma and grandpa—a will or trust ensures that those items fall into the right hands. Third, do you want to allocate any assets to a significant other? If you and your partner are not married, he or she is not entitled to any of your assets and will likely receive nothing through intestacy either. Whether you want to leave money or possessions—valuable or sentimental—a will or trust ensures your significant other receives a piece of your estate.

5) Digital Assets: Social media accounts and digital files need postmortem management, especially if you would like your family to shut down your various online accounts. Federal law does not require that websites permanently delete the account of a deceased user. Therefore, designating a digital “executor” and creating an inventory (with updated usernames and passwords) of your online accounts that details what you would like done with them can ensure your online presence is handled according to your wishes.

Death is a difficult subject, but estate planning ensures that your family is not left without direction for how your final wishes should be carried out. Therefore, if you are interested in learning more about estate planning, please contact the experienced attorneys at Lonich Patton Ehrlich Policastri. We can help determine what documents would best safeguard your assets and/or your medical wishes.

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.

Three Things to Know About Creating a Living Trust

July 27, 2016/0 Comments/in Estate Planning, Probate /by Lonich Patton Ehrlich Policastri

First, one of the biggest advantages of creating a living trust is avoiding probate court. Administering a will or trust through probate court takes time and money. A living trust is a great estate planning vehicle because it can keep the entire administration process court-free. When the settlor of the trust passes away, the terms of the trust dictate how the estate should be administered. In turn, probate court is avoided.

Second, make sure that the successor trustee is someone who is capable of administering the trust. Often times, the oldest child is chosen to be the successor trustee. However, the oldest child is not always the right choice. A successful administration requires a trustee who is organized, diligent, and capable of administering the trust. It is also beneficial to have someone with an understanding of accounting. If your oldest child does not have any of these characteristics, consider appointing another child, relative, or friend. If no one you know is capable of administering the estate, you may have to hire a third party. There are a number of trust companies and banks that administer trusts. The biggest concern about hiring a third party is the administration fees, which can be substantial. If your estate can handle the fees, a third party may be the right choice for you. Lastly, a trust will never fail for lack of a trustee. If the elected trustee refuses, another one will be appointed.

Finally, creating a trust avoids California’s intestacy laws. A state’s intestacy laws provide the default estate plan for those who die without a will. In California, the beneficiary of a decedent’s estate depends on whether the property was community property or separate property. Assuming that decedent was married and had community property, the surviving spouse’s intestate share is the decedent’s one-half share of the community property. On the other hand, if the decedent’s property was separate property, the intestate share of the surviving spouse depends on how many children the decedent had, if any. While it is important to know a state’s intestacy laws, they should be avoided at all cost. Thus, creating a trust is a way to avoid intestate succession and have your estate administered the way you want it.

If you are interested in creating a living trust or have any questions regarding your current estate plan, please contact the experienced estate planning attorneys at Lonich Patton Ehrlich Policastri for further information. The attorneys at Lonich Patton Ehrlich Policastri have decades of experience handling complex estate planning matters, 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.

Sources:

California Probate Codes § 6400-6414.

Posts

What To Know When Becoming An Executor Of An Estate

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

What Is An Executor’s Responsibility With Estate Taxes?

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

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

Tom Petty’s Estate is Having a Breakdown

The Beginning of a Long Lititgation

Determining the Meaning of Language in Estate Plans

How Do I Get Legal Assistance for Estate Planning?

Reverse Mortgages: How it Works

Aretha Franklin Did Not Have a Will

GIFTING REAL ESTATE TO FAMILY MEMBER CARETAKER: RED FLAGS

Estate Planning for Special Needs Children

Understanding the Impact of the Spousal Fiduciary Duty on Estate Planning

Lonich Patton Erlich Policastri In The Community!

Estate Planning for Millennials

Three Things to Know About Creating a Living Trust

Free 30-Minute Family Law or Estate Planning Consultation

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