We hope you find the information below informative.
Please contact us if you would like to schedule a consultation to discuss your own situation.
Apr 8, 2022
As required under Probate Code § 890, on April 1, 2022, the Judicial Council of California adjusted the maximum probate exemption values. Prior to April 1, a person’s estate had to go through probate if its gross value was more than $166,250.00. As of April 1, this figure has been increased to $184,500.00.
There are other categories of exemptions for specific asset types. Here is a link to the Judicial Council form that contains the relevant information.
Mar 15, 2022
The information provided below is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. If you would like to schedule a free consult call, you can contact us by clicking here.
May 18, 2022
One of the most common questions about estate plans is: What’s the difference between a trust and a will? In California, the difference is big if you’re a homeowner. Basically, having a properly prepared and funded trust means avoiding Probate, while having just a will (or worse, no estate plan) means the estate will have to go through Probate.
Here is a brief overview and description of the various estate plan documents, what they do, when we use them, and the title of the person in charge. For more information about common questions and estate planning issues, click here. To schedule a free consultation, click here.
Declaration of Trust: This is the document that allows a client’s loved ones to avoid Probate. The Trust document also contains most of the instructions for carrying out the estate plan after a person dies: who is in charge of winding up the client’s affairs, how and to whom assets will be distributed, backup plans as needed, and how to deal with possible disputes. Clients fund the Trust in various ways: by the document’s own language, by a separate written declaration that all of the client’s assets are intended to be in their trust, by deeds for real property, and by Pay-on-Death (“POD”) designations with financial institutions.
When to use: The Declaration of Trust is most important after the signer has died. However, if the signer is incapacitated, then sometimes the family will use the Declaration of Trust to deal with Trust assets.
Title of the person in charge: Trustee (usually the original signer), or Successor Trustee (if the signer is incapacitated or has passed away).
Will: When a person has a Trust, their will is like a backup parachute — it’s there in case of an emergency. Since the Trust takes care of all the details, it is extremely rare to use the will to handle a person’s affairs.
When to use: After the signer has died, and even then, only in the unlikely event that something unexpected has happened related to the Trust.
Title of the person in charge: Executor.
Durable Power of Attorney: This is the document that allows a third party to manage someone’s financial affairs if they are too ill to manage their own affairs, proven by a written declaration from the person’s doctor (sometimes two doctors), or a court order signed by a judge.
When to use: When the signer’s doctor(s) or a judge has stated in writing that the signer is too ill to manage their own affairs without the aid of a third party.
Title of the person in charge: Attorney in fact.
Advance Health Care Directive: This is the document that allows a third party to speak with a person’s doctor if the person is too ill to make their own informed medical decisions, as determined by the doctor who is treating them at the pertinent time.
When to use: When the signer’s doctor determines the signer is too ill to make their own informed medical decisions.
Title of the person in charge: Health care agent.
Nomination of Guardians: This is the document that clients with minor children use to nominate people to raise their minor children if needed.
When to use: When both of a minor child’s parents have passed away or are unable to care for the child.
Title of the person in charge: Guardian.
May 13, 2022
Here’s a common scenario in making trust distributions:
The trust estate contains cash (most commonly from a home sale), and some items of valuable personal property like a car. We have two or more “residual” beneficiaries who will receive equal shares of the trust estate. One of the beneficiaries wants to keep the car as part of their residual distribution.
For our example, we will use round numbers to make the math easier. We have three beneficiaries — let’s call them Huey, Dewey, and Louie — each of whom will receive an equal one third share of the residual trust estate after administrative costs, debts, and expenses are paid. We will presume that all the costs, debts, and expenses are paid for. The trust estate has $100,000.00 of distributable cash on hand, and the car is worth $5,000.00, for a total residual estate of $105,000.00.
Louie has asked to receive the car as part of his share, and Huey and Dewey have no objection. Here is how calculate the cash and “in kind” distributions to ensure the value of each beneficiary’s share is equal:
Each beneficiary gets a distribution worth $35,000.00 ($105,000.00 / 3 = $35,000.00). As we know, the cash is $100,000.00, and the car is worth $5,000.00.
Huey and Dewey each get $35,000.00 in cash. ($100,000.00 – $35,000.00 = $65,000.00 – $35,000.00 = $30,000.00).
After Huey and Dewey are paid, we have $30,000.00 in cash, and the car.
Louie gets the car valued at $5,000.00, plus the remaining $30,000.00 in cash, for a total value of $35,000.00.
All beneficiary distributions are equal in value.
Apr 25, 2022
To borrow a phrase from Rod Serling, imagine if you will:
You did the responsible thing by executing an estate plan to get your affairs in order. Your documents include incapacity documents — an Advance Health Care Directive for medical decisions, and a Durable Power of Attorney for financial affairs. Some time after you sign your estate plan, you become too ill to manage your affairs. The people you named in your incapacity documents do their job: your attorney-in-fact obtains a doctor’s note to prove you are too ill to manage your own affairs unaided. However, when your attorney-in-fact goes to your bank to handle some business on your behalf, the bank refuses to honor the Durable Power of Attorney…at the worst possible time.
This scenario is becoming all too common among banks, especially large national banks. Luckily, California Probate Code Sections 4305 and 4306 provide a way to ensure that the Durable Power of Attorney is honored.
Probate Code § 4305 provides that an attorney-in-fact can sign an affidavit under penalty of perjury to confirm that the power of attorney is valid and has not been revoked or terminated. The signed affidavit is deemed conclusive proof (for the benefit of third parties like banks) that the power of attorney is in fact valid. Under Probate Code § 4305, third parties are not liable for losses incurred if they rely on the affidavit: in other words, the bank is protected if anyone claims they should not have accepted the power of attorney. So, there is no good reason for a bank to refuse to accept a power of attorney when the attorney-in-fact presents the following items: (1) the power of attorney; (2) the doctor’s note (if the power of attorney requires one before it is effective); and (3) the affidavit.
Probate Code § 4306 provides that, if a third party refuses to accept the authority provided in the power of attorney after receiving the affidavit, then they can be liable for the attorney’s fees incurred to confirm the attorney-in-fact’s authority under the power of attorney. This section is the “stick” to the “carrot” of § 4305.
If you are an attorney-in-fact for someone who is too ill to manage their own affairs, and a bank refuses to accept the power of attorney, then you should consider consulting an attorney.
Apr 20, 2022
Beneficiaries are often uninformed when it comes to estate administration. There are two things beneficiaries should know: (1) as beneficiaries, they have rights during the administration; and (2) the administration will take time, so a little patience goes a long way.
By law, successor trustees are required to keep beneficiaries reasonably informed about the trust administration, provide periodic accountings to beneficiaries, and act reasonably and in good faith for the beneficiaries’ best interests.
So, beneficiaries can ask for information, for example: Has the house been appraised? Could you send me a copy of the appraisal report? When is escrow set to close?
Beneficiaries have a right to receive accounting reports from the trustee (annually, or on a change of trustee, or prior to distribution), to keep beneficiaries informed of estate expenses, income, and assets in the custody of the trustee.
Beneficiaries also have the right to ensure the trustee is acting reasonably and fairly in carrying out the administration, because the beneficiaries are the equitable owners of the trust assets. The trustee is working for the beneficiaries.
Sometimes, uninformed beneficiaries mistakenly believe they have the right to nitpick and second-guess everything the trustee is doing (usually due to family history between the beneficiary and trustee). However, beneficiaries do not have the right to substitute their own judgment for the trustee. So long as the trustee is carrying out their duties competently and in good faith, the law affords trustees wide latitude in handling the details of the administration.
Apr 12, 2022
In a previous post, I wrote about qualities a successor trustee should have to ensure a successful trust administration. While it should go without saying, there will be problems when a successor trustee tries to administer a trust estate if they lack knowledge and experience in dealing with legal, accounting, and tax issues. The successor trustee compounds those problems by refusing to hire experts like attorneys and accountants to assist the trustee in administering the trust estate properly.
An uninformed successor trustee often fails to complete time sensitive tasks in a timely manner. They fail to keep beneficiaries informed of the progress of the trust administration. Sometimes, an uninformed successor trustee will fail to do even the most basic tasks, like providing copies of the trust to all beneficiaries and qualified heirs at law. Often, uninformed trustees fail to keep adequate financial records. Each and every one of these mistakes is a breach of the trustee’s various fiduciary duties to the beneficiaries.
A single breach of fiduciary duty is sufficient for beneficiaries to have a successor trustee removed. Unfortunately, an uninformed trustee often commits several breaches of their fiduciary duties, and often these breaches cause financial harm to the beneficiaries. When a successor trustee’s breach of their fiduciary duties causes financial harm to beneficiaries, the trustee is personally liable to the beneficiaries for those financial losses.
If you are named as a successor trustee, keep two things in mind: (1) not only are you allowed to hire experts like attorneys and accountants to assist you, the law requires you to do so for any areas where you are inexperienced or lack knowledge; and (2) if you believe the job of administering a trust estate is not for you, then you don’t have to serve as successor trustee — you can decline to serve, and another successor can serve instead. Even if the trust instrument does not name another successor after you, the law provides mechanisms to appoint successors when necessary.
If you are a beneficiary of an irrevocable trust, and you suspect that the successor trustee may be failing in their duties, then you should consider getting independent legal advice, before an uninformed successor trustee can do real financial damage to the trust estate.
Apr 4, 2022
The real risks for most ordinary estate plans come from a lack of knowledge, which can cause your loved ones unnecessary stress in dealing with your affairs, or worse, can allow you or your loved ones to be taken advantage of by unscrupulous people.
You can protect against such risks with knowledge. If you have an estate plan, tell your loved ones that you do. If you do not have an estate plan, then once you establish your plan, be sure to inform your loved ones. Make sure your loved ones know that they have rights after you are gone. Tell the person (or people) you name to handle the administration that it’s a job, and there are real consequences if they fail to do that job properly, which is why they will need to be prepared to bring in expert tax, accounting, and legal help when the time comes.
In the next several days, I will post about how a lack of knowledge can lead to bad outcomes, and some ways to avoid those pitfalls.
Mar 28, 2022
As they say: “timing is everything.” When it comes to getting affairs in order through an estate plan, this is certainly true. Aside from the obvious case of passing away before executing an estate plan, there is another, often thorny situation when it becomes too late for someone to execute their own estate plan: when they are too ill to understand and appreciate the nature of the act.
I receive more than a few calls from people seeking to establish an estate plan “for” a third party, usually in response to some emergency such as a sudden illness. Unfortunately, if the principal — the person who owns the assets that will be subject to the estate plan — is too ill to make their own informed medical decisions, then under the law, the principal lacks the legal ability (called capacity) to sign a document like a trust or a power of attorney. While the principal might have the capacity to sign a will, if the principal owns sufficient assets, then their estate ends up in probate if they pass away before they recover.
The nuances of legal capacity are beyond the scope of this post, but here is a rule of thumb to keep in mind: when someone is too ill to make their own informed medical decisions, then they are too ill to sign a trust or a power of attorney. In these cases, there is another option available for the family — conservatorship court. A conservator can be appointed, with the express authority to sign an estate plan on behalf of the ill family member. Conservatorship court is not an ideal solution, but if it becomes the only way to avoid probate, then it’s the best option a family may have. Of course, people can avoid the emergency scenario by getting their estate plan completed prior to illness.
Mar 25, 2022
People often believe that they must change the name on their bank accounts as part of establishing their living trust. However, “changing” the owner of a personal bank account actually means closing the account and opening a new one in the new owner’s name. If you have ever opened a new bank account, then you know the common headaches that accompany the new account: ordering new checks, holds on deposits, and so on.
Actually, you can keep your current accounts, and name your trust as a “pay on death” (“POD”) or “transfer on death” (“TOD”) beneficiary. Under California law, if an account has a POD designation, then when the account owner dies, the POD payee automatically becomes the new owner of the funds on deposit, without having to go to probate court.
Now, if you want to open new accounts in the name of your trust, you can certainly do so, or (as noted above) you can open new accounts in your own name and use the pay on death beneficiary designation method described above.
Name whoever you like (spouse, children, and so on), and then name your trust as a backup, just in case. Since trusts do not die, the financial institutions will always have a surviving POD payee to whom the money will be turned over. Also, you may want to name your trust as the primary POD payee on at least one account, so the person named to wind up your affairs will have access to money right away, to pay final expenses and administrative costs.
Mar 24, 2022
Even with a trust, people are often confused about what they may need to do regarding their real estate. Apart from ensuring that the real estate you own is deeded into your trust, there are some common, recurring issues that can arise with real property.
Refinancing — If you refinance, and your lender makes you take your property out of your trust, then tell your mortgage broker or loan officer, and your escrow officer, that you want a deed and (for California property) a Preliminary Change in Ownership Report (“PCOR”) prepared to place the property back into your trust, which you will sign when you sign your loan documents. Often, the title company handling the refinance will record the deed to put the property back into trust for you, but if the company doesn’t handle the recording, then you can arrange to record the deed, most commonly with the help of the lawyer who drafted your trust documents.
Real estate sale — Sometimes, when you sell real estate held in your trust, the title company will “demand” that you open a bank account in your trust’s name or else they will not remit funds to you. When this issue comes up, it’s always at the last possible moment, which causes unnecessary stress. There are two ways you can instruct the escrow officer to avoid this headache. First, you can assign your sale contract from yourselves as trustees of your trust, to yourselves as individuals. At the time you accept a buyer’s offer, direct your real estate agent to include an Addendum to assign your contract (which includes receiving the money from escrow on closing) out of your trust to yourself. The second method (if the title company refuses to accept the first option and you can’t fire them) is to instruct the escrow to prepare a deed so you can remove the property from your trust to yourself, the same way you would if your lender required removing property from a trust for a loan.
New real estate purchase — Take title to newly purchased or acquired real estate as trustee(s) of your trust. You can tell your real estate agent and your escrow officer that you have a trust. The escrow officer may ask to see your trust, so their staff can prepare the necessary documents. If you take out a loan to buy the property, and your lender tells you that you can’t hold title in your trust when they lend you the money, then see the paragraph above on refinancing for more information on what to do.