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Frequently Asked Questions about Estate Planning

Estate planning can often seem overwhelming and confusing. To add some clarity to the process, our attorneys have compiled a list of our FAQs about estate planning in the space below. If you have further inquiries, do not hesitate to contact our office, and we will happily answer your questions.

What is Probate?

Probate is the court and process that looks after people who cannot make their own personal, health care and financial decisions. These people fall into three general categories: Minor Children (under age 18 in most states); Incapacitated Adults; and People who have died without legal arrangements to avoid probate. Probate proceedings can be expensive and time-consuming. Additionally, the court proceeding and associated documents are all a matter of public record. Many people choose to avoid probate in order to save money, spare their heirs a legal hassle, and keep their personal affairs private.

What is Joint Tenancy with Rights of Survivorship? (in some states “Tenancy by the Entirety” when between spouses)

This is the most common form of asset ownership between spouses. Joint tenancy (or TBE) has the advantage of avoiding probate at the death of the first spouse. However, the surviving spouse should not add the names of other relatives to their assets. Doing so may subject their assets to loss through the debts, bankruptcies, divorces and/or lawsuits of any additional joint tenants. Joint tenancy planning also may result in unnecessary death taxes on the estate of a married couple.

What is a Will?

The document a person signs to provide for the orderly disposition of assets after death. Wills do not avoid probate. Wills have no legal authority until the willmaker dies and the original will is delivered to the Probate Court. Still, everyone with minor children needs a will. It is the only way to appoint the new “parent” of an orphaned child. Special testamentary trust provisions in a will can provide for the management and distribution of assets for your heirs. Additionally, assets can be arranged and coordinated with provisions of the testamentary trusts to avoid death taxes.

What is a Living Will?

Sometimes called an Advance Medical Directive, a living will allows you to state your wishes in advance regarding what types of medical life support measures you prefer to have, or have withheld/withdrawn if you are in a terminal condition (without reasonable hope of recovery) and cannot express your wishes yourself. Oftentimes a living will is executed along with a Durable Power of Attorney for Health care, which gives someone legal authority to make your health care decisions when you are unable to do so yourself.

What does Intestacy mean?

If you die without even a Will (intestate), the legislature of your state has already determined who will inherit your assets and when they will inherit them. You may not agree with their plan, but roughly 70 percent of Americans currently use it.

What are Beneficiary Designations?

You may avoid probate on the transfer of some assets at your death through the use of beneficiary designations. Laws regarding what assets may be transferred without probate (non-probate transfer laws) vary from state to state. Some common examples include life insurance death benefits and bank accounts.

What is a Durable Power of Attorney and when do I need one?

These allow you to appoint someone you know and trust to make your personal health care and financial decisions even when you cannot. If you are incapacitated without these legal documents, then you and your family will be involved in a probate proceeding known as a guardianship and conservatorship. This is the court proceeding where a judge determines who should make these decisions for you under the ongoing supervision of the court.

What is a Revocable Living Trust?

This is an agreement with three parties: the Trust-makers, the Trustees (or Trust Managers), and the Trust Beneficiaries. For example, a husband and wife may name themselves all three parties to create their trust, manage all the assets transferred to the trust, and have full use and enjoyment of all the trust assets as beneficiaries. Further “back-up” managers can step in under the terms of the trust to manage the assets should the couple become incapacitated or die. Special provisions in the trust also control the management and distribution of assets to heirs in the event of the trustmaker’s death. With proper planning, the couple also can avoid or eliminate death taxes on their estate. The Revocable Living Trust may allow them to accomplish all this outside of any court proceeding.

Who Should Have a Revocable Living Trust?

Whether you are young or old, rich or poor, married or single, if you own titled assets such as a house and want your loved ones to avoid court interference at your death or incapacity, consider a revocable living trust. A trust allows you to bring all of your assets together under one plan.

What is Trust and Estate Litigation?

Trust and estate litigation involves legal disputes regarding the administration, distribution, and management of trusts and estates. It often encompasses will contests, trust disputes, fiduciary litigation, and estate administration conflicts.

What are Common Reasons for Contesting a Will in California?

Common reasons include undue influence, lack of testamentary capacity, fraud or forgery, and improper execution of the will.

How Do I Know if I Have Grounds for a Will Contest?

Grounds for a will contest may include evidence of mental incapacity, evidence of coercion or manipulation, or procedural flaws in how the will was created and executed.

What is Undue Influence in the Context of Wills and Trusts?

Undue influence occurs when a benefactor is coerced or manipulated into modifying their will or trust, often unfairly benefiting the influencer.

What Does a Trust Litigation Attorney Do?

A trust litigation attorney represents clients in disputes related to the interpretation, administration, or enforcement of trust documents.

What is Fiduciary Litigation?

Fiduciary litigation involves legal action against fiduciaries, such as trustees or executors, for mismanagement, breach of duty, or negligence in handling estate or trust assets.

How Long Do I Have to Contest a Will in California?

The time limit (statute of limitations) for contesting a will in California typically depends on specific circumstances but generally ranges from a few months to several years after the will has been submitted to probate.

What are the Duties of a Trustee in Managing a Trust?

Trustees must manage the trust assets prudently, act in the best interests of the beneficiaries, and adhere to the terms of the trust document.

Can a Beneficiary Sue a Trustee?

Yes, beneficiaries can sue trustees for breach of fiduciary duty, mismanagement of trust assets, or failure to adhere to the trust’s terms.

What is Estate Administration?

Estate administration is the process of managing and distributing a deceased person's assets according to their will or state laws if there is no will.

How are Estate Disputes Resolved?

Estate disputes are typically resolved through negotiation, mediation, or litigation, depending on the complexity and nature of the dispute.

What is a Trust Dispute?

A trust dispute arises when there are disagreements over the interpretation, administration, or distribution of trust assets.

What is the Difference Between a Revocable and Irrevocable Trust in Litigation?

Revocable trusts can be altered or terminated by the settlor, while irrevocable trusts cannot. Litigation of these trusts often varies based on their nature and the terms set forth in the trust document.

Can an Executor of a Will be Sued?

Yes, executors can be sued for breach of fiduciary duty, mismanagement, or failure to properly administer the estate.

What Happens if a Will is Deemed Invalid?

If a will is deemed invalid, the estate may be distributed according to the previous valid will or, if there is none, in accordance with California's intestacy laws.

Are Legal Fees Recoverable in Trust and Estate Litigation?

Legal fees may be recoverable depending on the case’s specifics, often depending on whether the litigation benefits the trust or estate.

How Can I Avoid Trust Litigation?

Avoiding trust litigation can involve clear drafting of trust documents, choosing the right trustee, and regularly updating your trust to reflect current circumstances.

What is a No Contest Clause in a Will?

A no contest clause is a provision in a will or trust designed to discourage beneficiaries from contesting the document by penalizing them if they do.

How is a Trust Amended or Terminated?

Trusts can be amended or terminated according to the terms set in the trust document or through court proceedings if certain conditions are met.

What are the Rights of Trust Beneficiaries?

Trust beneficiaries have rights to information about the trust, to receive distributions as set forth in the trust, and to ensure the trust is being managed properly.

Can a Trust be Contested Like a Will?

Yes, trusts can be contested on similar grounds as wills, such as undue influence, lack of capacity, or improper execution.

What is Probate Litigation?

Probate litigation involves legal disputes that arise during the probate process, such as will contests or disputes over estate administration.

How Do Conflicts in Estate Administration Arise?

Conflicts in estate administration can arise from disagreements among beneficiaries, ambiguities in the will, or disputes over asset valuation.

What is the Process for Removing a Trustee?

Removing a trustee typically involves legal proceedings where evidence of misconduct, incapacity, or breach of fiduciary duty is presented.

How Does a Trust and Estate Attorney Help in Litigation?

A trust and estate attorney provides legal representation, navigates complex laws, and develops strategies to protect clients' interests in litigation related to trusts and estates.

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291 S. La Cienega Blvd. #310 Beverly Hills, CA 90211
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