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8 Steps to Take to Ensure Your Will is Valid

WillsNo Comments

will4 150x150 8 Steps to Take to Ensure Your Will is Valid1.  Keep your will up to date. Your life circumstances have probably changed since you first drafted your Last Will and Testament.  Be sure to consult with your estate planning attorney regularly to make sure your document reflects changes to estate tax and other laws.

2.  Make sure at least a few different people in your family know where to find your will when you die. Do not make the common mistake of tucking your will away in a safe deposit box. Bank safety deposit boxes can be sealed upon your death, and then no one will have the access necessary to gather the documents they will need to settle your estate.

3.  Choose your executor/personal representative with care. It is wise to choose someone who is not likely to die before you. It is also best to choose someone who is responsible, honest and fair. Be sure to ask him or her to be your executor before you die; do not assume that they want the title. It is also imperative that you have a back-up executor/personal representative in case your first choice in unavailable at the time of your death, as an executor/personal representative must meet a standard set by California probate laws to be appointed by the court.

4.  Don’t contradict yourself. To avoid legal battles, make sure your will does not contradict the beneficiaries named on your retirement fund or other payable-on-death accounts.

5.  Plan for the worst. Provide a back-up guardian for your minor children in case your first choice has already died. Even if they are still alive, circumstances could make it impossible for him or her to take care of your children.  Also, think about where assets should go if your first choice has already died.  You may not want a child’s ex-spouse to have a share of your estate.

6.  Be explicit. Do not necessarily leave everything to your spouse if you want your children to inherit as well. Many circumstances can occur that would leave nothing for your children. For example, if a surviving spouse remarries, the new spouse may be the rightful heir to the surviving spouse’s estate.  If you want to disinherit a child, you must mention that desire explicitly because in many cases, a child not named in a will may still get a share of the inheritance since the probate court will not know if you accidentally excluded that child.

7.  Be clear about who gets valuable and sentimental items. It is not necessary to make a list of who should have every last one of your possessions, but consider giving those little things away while you are still alive.

8.  Get professional help. An estate planning attorney experienced in these common pitfalls can help you draft a solid California Last Will and Testament.  Contact our Orange County law firm to learn more.

5 Ways to Avoid a Will Contest

Estate Planning, WillsNo Comments

last will 150x150 5 Ways to Avoid a Will ContestWhen inheritances are made unequally, it usually means that the will could face a contest in court.  While there are many good reasons for giving unequal distributions, your heirs may not agree with the decisions you’ve made.

Here are 5 tips for heading off a will contest if you plan to give unequal shares to heirs:

Explain why.  It’s best to let children know why you have decided to structure your will to provide more or less for each child.  If you can’t do it face-to-face, then include a letter in your will.

Provide evidence of capacity.  Again, a letter in your will explaining disparities can help you prove your capacity to make the decisions you made.  If you want to make a video, consult first with your estate planning attorney – or better yet, have them there when you do it.

Gift now.  If one child needs more help than the others, consider making gifts now while you are still alive rather than unequal distributions via your will.  Then you can make everything even after you pass.

No-contest clause.  This can deter your heirs from filing a claim if your will includes a clause that disinherits those who file suit.

Update your will.  Be sure you keep your will up to date, making changes as necessary and as the lives of you and your family change.

To learn more about effective estate planning, contact our Orange County law firm.

The Dementia Dilemma: Will It Rob You of Your Inheritance?

Probate, WillsNo Comments

last will 150x150 The Dementia Dilemma: Will It Rob You of Your Inheritance?One-third of seniors die with some form of dementia, according to the Alzheimer’s Association, including Alzheimer’s, which currently affects more than five million Americans.

Beyond the care giving burdens this places on a family, there are also increasing instances of seniors being exposed to financial exploitation because of their dementia, including signing assets over to people who normally would never inherit.

So what if your inheritance becomes a victim of an elderly relative’s dementia?  You will likely want to contest the will – and if you do, you need to find out the following:

Who wrote the will? Was the will prepared by an estate planning attorney already familiar to your family, or was it one of those wills downloaded from the Internet?

Was your relative taking any medications?  Some medications can cause memory loss.  In addition, knowing what medications your relative is currently taking can clue you in to a dementia diagnosis.

What do the medical records indicate?  If you have access to medical records, you will gain the necessary knowledge you may need to successfully challenge a questionable bequest, especially if your relative lacked the testamentary capacity to execute a new will.

What do care givers say?  If your relative was under the care of a professional healthcare worker, they will be able to attest to his or her ability to make decisions.

When was probate opened?  You have a limited time to contest a will in California.  If a probate petition has already been filed, you should file before the hearing on the petition.  You will need the help of a probate attorney to make your claim.

For more information on protecting an inheritance, contact our Orange County law firm.

5 Questions to Ask Yourself Before Leaving Children an Inheritance

Estate Planning, WillsNo Comments

question mark in front of face 150x150 5 Questions to Ask Yourself Before Leaving Children an Inheritance1.  How much is too much?  Most parents do not want to leave an inheritance that would prove detrimental instead of helpful to their children.  While you may not be a Warren Buffett or a Bill Gates, if you do have substantial sums to leave behind, consider how much might be too much to be detrimental to ambition or productivity and maybe leave the rest to a favorite charity.

2.  At what age should they inherit?  Immediate access to a large amount of money can be just as harmful as it could be helpful.  If you are leaving a substantial amount to your children, should you stagger those distributions so they can learn how to be good stewards of your fortune?

3.  Are there any issues?  Parents of children with substance abuse problems or who are just bad with money need to take these issues into consideration before leaving an inheritance.  The same is true of parents with special needs children; you don’t want to disqualify them from receiving important governmental benefits.  There are several good estate planning strategies to help you deal with these contingencies.

4.  Should children be treated equally?  Most parents want to treat all their children the same when it comes to inheritances, but the fact is that not all children are created equal.  One may have already achieved great wealth, while another may be about ready to file bankruptcy.  Customize your estate plan to take these factors into consideration.

5.  Who is the best choice to serve as executor or administrator?  Many parents believe that the eldest child should serve as the executor of their estate or administrator of a trust, but you need to consider who has the best skills to tackle these critical tasks.  Name the best person for the job – which, if you have multiple children, could be someone not related to you at all.

For more insights into estate planning, contact our Orange County law firm.

Where Does Your Stuff Go When You Die?

Estate Planning, WillsNo Comments

We all know that “you can’t take it with you”… so where does your stuff (including your money) go when you die?

As the infographic below (from Arizona estate planning law firm Gorman & Jones) clearly illustrates, the answer to this question depends on if you have done the proper planning for the disposition of your assets.  If you haven’t done any planning, then the government will be more than happy to be your heir.

where does your money go when you die 52457155cc27b Where Does Your Stuff Go When You Die?

If you want to make a plan for your assets that does not include Uncle Sam, contact our Orange County law firm.

How to Plan for Receiving an Inheritance

Asset Protection, Estate Planning, Tax Planning, WillsNo Comments

money gift 2 e1316545217983 How to Plan for Receiving an InheritanceIt is estimated that the next few decades will see the largest transfer of wealth in history in the form of inheritances.  Planning for receiving an inheritance is imperative if you want to protect assets to come and even pass them along to the next generation.

A recent Morningstar article details the things you need to know about inheritance planning:

The type of assets you will receive.  You may be inheriting real estate, an art collection, cash, stock, retirement accounts or a combination of all of these.  But whatever you will inherit requires some tax planning so you don’t incur unnecessary capital gains or estate taxes.

How the assets will be distributed.  If the assets are not being transferred via a trust, this could trigger some taxes as well.

Do your own estate planning first.  Many financial experts caution people against waiting on an inheritance before they create their own estate plan.  What would happen to the inheritance if something were to happen to you first?

Set your priorities.  If you already have an estate plan, you have likely established your financial priorities.   Working with an estate planning attorney or financial planner to determine the best use for your inheritance before you receive it is a better option than waiting until it arrives.

Determine other obligations.  Maybe you don’t need the entire inheritance to meet all your priorities, but your children could use the money.  You should have a plan that addresses what will happen to the inheritance after you receive it, including any obligations you want to fulfill to other family members or a favorite charity.

For additional information on creating an estate plan and protecting the assets you have now as well as what you will receive via an inheritance, contact our Newport Beach law firm.

Learn from the Real Will Mistakes of These Celebrities

Estate Planning, WillsNo Comments

hollywood sign e1377636285562 Learn from the Real Will Mistakes of These CelebritiesWhile celebrities doubtless have access to more legal resources than most people, there are several who have famously made big mistakes when it came to their wills.  Here is what you can learn from these famous errors:

Anna Nicole Smith – Her will left everything to her son, who predeceased her by several months.  It also had a provision that said she was intentionally omitting to provide for any future spouse or children.  She died without a spouse, but did have an infant daughter.  A later judicial order recognized her daughter as her sole heir; that daughter could inherit as much as $49 million from the estate of Smith’s late husband after years of protracted litigation.

Brooke Astor – Astor left her son from her second marriage, Anthony Marshall, several valuable real estate properties, $5 million in cash and lifetime income from a $60 million trust.  However, Marshall was indicted for stealing millions from Astor before she died at age 105, and is serving a prison term for his theft.  Under a settlement with the estate, he received far less than she left him in the will, proving that in this instance, greed is not good.

Gary Coleman – When he died at age 42, Coleman left two wills behind – one drafted in 1999 that left everything to his manager and another signed in 2005 that left his estate to a friend.  In 2007, Coleman married Shannon Price in Utah and added a codicil to the 2005 will that made her his heir.  Coleman and Price divorced in 2008, and Utah law invalidated the codicil because of the short duration of the marriage.  However, Price was still named as Coleman’s agent for medical decisions, and had his doctor take Coleman off life support one day following a serious accident in his home – even though his living will specified that he be kept alive for at least 15 days in case of just such an occurrence.  The lesson?  Updating wills and advance medical directives is critical after every major life event, including divorce.

Steve McNair – Quarterback Steve McNair was murdered in 2009 by his mistress, leaving a wife and four children but no will for his estimated $19 million estate.  If McNair had the necessary estate plan in place, a revocable living trust could have passed his assets to his family outside probate.  As it happened, the probate process froze his wealth and his family had to endure added costs and delays.

To properly protect your family and your assets with a comprehensive estate plan, contact our Orange County law firm.

The People You Can — and Cannot — Disinherit

WillsNo Comments

will4 150x150 The People You Can    and Cannot    DisinheritThe reasons people choose to leave someone out of their will are as varied as the families affected. Disinheriting a family member is becoming more common, but the law will not allow you to disinherit a spouse or minor children.

Since California law makes specific provisions for the inheritance rights of spouses and minor children, you will not be allowed to disinherit either one. Even if you attempt to write someone specifically out of your will, if it is a spouse or minor child, the court will disregard your instructions and follow the law of inheritance in California.

It is possible to disinherit an adult child, but the wording should be very specific. Simply neglecting to name them in your will is not enough; a court may find the omission was in error and allow that child to inherit. Experts advise that you name a disinherited person specifically and the reasons for your actions, in unemotional terms.

If you want to specifically disinherit a parent, you will need to specify that in your will and choose a different heir if you die without a spouse or children, since your nearest living relative would inherit in that circumstance.

You are not legally obligated to leave anything to your extended relatives, but if you die unmarried and without children, those relatives may inherit unless you state in your will that you have provided for everyone you wish and that anyone else left out is by your intention.

To ensure your wishes are respected, you need to execute the proper estate planning documents.  Contact our Orange County law firm for help.

Couple a Will with a Living Trust to Avoid California Probate

Living Trust, WillsNo Comments

Trustpic 150x150 Couple a Will with a Living Trust to Avoid California ProbateThe California court system has been impacted by statewide budget cuts, meaning court dockets are becoming more crowded and backlogs are the norm. This is just one of several reasons Californians should look at ways to avoid the probate process altogether, and marrying a will with a living trust can help you do this.

A living trust allows you to make your wishes known and have them followed both while you are alive and after you pass away. And since living trusts are considered contracts, they are not subject to probate, ensuring a circumnavigation of the California probate process and the ability to keep your private matters private.

A living trust protects you while you are alive by enabling you to name a power of attorney, which gives your family the ability to make healthcare decisions for you in case you become totally incapacitated. It also allows them to manage your finances without having to have a court intervene.

You will also name a successor trustee as part of establishing your living trust, who will manage the trust in the event you die unexpectedly. The successor trustee you appoint has the power to manage trust assets, including real estate, for your children or other trust beneficiaries you designate.

For more strategies to avoid probate in California, contact our Orange County law firm.

Asset Protection: When a Will Won’t Do

California Trusts, WillsNo Comments

no 150x150 Asset Protection:  When a Will Won’t DoEstate planning can be a complicated process for most people, and one of the most common misconceptions is that if you have a will, that takes care of everything.  However, you need to consider some of the things a will cannot do before you think your estate plan is rock-solid:

Provide a speedy resolution – wills must go through the probate process, which can take anywhere from 9 months to two years – even longer if you own property in another state.  During that time, your assets will be frozen in place and inaccessible to your heirs.

Protect your privacy – a will is a public document and guess who loves that?  Identity thieves!  Anyone can access a will, which usually contains a lot of personal and financial information about a decedent.

Useful in times of incapacity – a will goes into effect only at death, so it cannot protect you in case you become incapacitated.  If the Will is the only estate planning tool and incapacity is an issue, a Guardianship and Conservatorship will generally happen. This is yet another court proceeding that can be avoided if proper Power of Attorney documents are set in place.

No asset protection – a will does not provide your heirs with protection against creditors, divorce or Medicare spend-down.

In comparison, a trust is not subject to probate, is completely private, becomes effective at incapacity and at death, and provides important asset protection for heirs.

To ensure you and your family are fully protected, contact our Newport Beach law firm to discuss which estate planning tools are best suited for you and your loved ones.

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