Biddle Law Estate Planning Blog

What is the standard for capacity when establishing a trust?

Revocable trusts have become one of the most common estate planning tools.  Revocable trusts hold several advantages over wills in California.  With a trust, you can avoid probate and all of the costs, as well as time delays, that often come with it.  Additionally, you can maintain privacy as trust assets will be seamlessly passed from the trust to its beneficiaries without the need for court involvement, absent litigation.  If litigation over your trust does arise, it will often hinge on the issue of capacity.

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Your estate plan should generally change every time you have a child. However, there are unique concerns that you should address when you are crafting an estate plan with a special needs child in mind. Parents of children with disabilities may need to account for life-long medical care, an inability for the child to earn their own living, and naming someone who cares deeply about the child to be a guardian.

In addition, you will often need to plan so that your child will still qualify for government assistance for health care or income support as well. Funds often should not be left directly to the special needs child because he or she will not be able to manage these funds on their own.
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California probate court is unique because it is a special division of the court system that deals only with probate issues, including managing decedents’ estates, guardianships of minors, conservatorships of adults, and trusts.

There are several probate courts throughout the state.

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You cannot leave money or funds to a pet. Instead, you may want to set up a trust so that your assets or funds can be used for the care of that pet. That way, you know your pet will be cared for, even after you are gone, according to the instructions you have provided in the

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When someone dies, he or she likely needs to wind up his or her financial and legal matters. They rely on others and any plans that they have created before their passing to complete this task.

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Ideally, a loved one will discuss your role as an executor of their estate long before they pass. This candid discussion will allow you to consider the duties and responsibilities of someone acting in this role. That way you can make an informed decision long before it matters for your loved one. However, those who pass may not always have the foresight or time to have this conversation. As a result, you may have an executor assignment that you did not necessarily agree to carry out.

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Small estates do not need to be probated in California. That means that if you can decrease the total value of your property to under $150,000, you can avoid probate in California altogether.

This process is often referred to as “Summary Probate.” The executor of the estate simply has to file an affidavit or declaration 40 days after the date of death has passed. This document will be used to collect the assets of the estate for distribution.

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There are a number of reasons to create a will not the least of which are to protect your assets and provide for your loved ones. Nonetheless, having a will does not necessarily mean your wishes will be carried out. In fact, an estate can be exposed to a will contest if a dispute arises among family members. 
 
While these disputes may arise when assets are not distributed equally among the beneficiaries, particularly adult children, a will can be contested for a number of reasons, including:

• The testator lacked capacity
  
• There was undue influence on the testator
  
• The will was not properly executed
  
• The will was prepared fraudulently 

Avoiding a Will Contest: 101

Although will contests are not uncommon, there are steps you can take to avoid a will contest and intervention by the probate court. One of the common mistakes people make in estate planning is procrastinating, and not preparing a will until their health is failing.
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While advances in medicine allow people to live longer, questions are often raised about life-sustaining treatment terminally ill patients may or may not want to receive. Those who fail to formally declare these wishes in writing to family members and medical professionals run the risk of having the courts make these decisions.

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How do irrevocable trusts fit into my estate plan?

Although many people think that estate planning is only about creating a will, a comprehensive plan considers a number of objectives such as asset protection, avoiding probate, and minimizing estate taxes. One effective tool for achieving these goals is an irrevocable trust.

What is an Irrevocable Trust?

An irrevocable trust becomes effective during a person's lifetime and, unlike a living trust, cannot be amended or modified. In short, the grantor (the person making the trust) permanently relinquishes ownership of property by transferring it into the trust. In this arrangement, a trustee is named to manage the trust assets for the benefit of the beneficiaries.

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How does a personal representative initiate a probate proceeding in California?

If you have been named as a personal representative in a will, you will be responsible for a number of important duties in carrying out the instructions of the deceased. In short, it is necessary to

gather the estate property and transfer it to the beneficiaries through a court-supervised proceeding known as probate.

In order to start the process, you must first obtain Letters Testamentary from the Probate Court in the county in which the deceased person lived. This basically requires submitting the will, the death certificate, and completing a short application which includes a sworn statement that you have been named as the personal representative in the will. The application may also require providing an estimate of the estate's property and debts.

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