Meinzer Law Firm, PC

Torrance Trusts and Estates Law Blog

Understanding the California probate process

If you are currently grieving the loss of a loved one, you will quickly realize that as well as dealing with the emotional aspects of your loss, you will need to deal with the logistical proceedings that are necessary after a person's death. If you have been appointed as the personal representative of the estate, you have the responsibility to oversee the probate process.

The probate process is how all assets that were in the possession of the deceased person at the time of their debt are documented and distributed. If the deceased person left a valid will, this will be used to distribute assets to loved ones. The following is an overview of the key steps in the California probate process.

The required elements of a will

Each state in the country has its own set of estate planning rules for what constitutes a valid and legal will. For this reason, readers of this post are encouraged to fully understand the estate planning laws in their state. However, this post will offer an overview of what California residents must do in order to have valid wills.

In California, a person must be an adult in order to draft and execute a will. That means that they must be at least 18 years of age when their will is made valid. Individuals under the age of 18 may not be considered to have testamentary capacity to create such important legal documents.

Ways that an estate plan can be challenged

A number of legal documents can make up an estate plan. However, the mere existence of these documents is not enough to constitute a satisfactory and efficient plan. In fact, any errors in the creation of these documents can render an entire estate plan invalid, thereby negating one's wishes for his or her estate. This is why many individuals turn to legal professionals for assistance. However, when issues with an estate plan arise, individuals need to understand the law and how it applies to their set of circumstances.

One way these issues arise is when an individual's testamentary capacity is drawn into question. In order for a will or trust to be legally valid, it must have been created by an individual who understood the gravity of the decisions made at the time, as well as the consequences of those decisions. Therefore, those who are under the influence of a substance or suffering from a mental illness like dementia may be deemed legally incapacitated for the purposes of creating an estate planning document. It is worth noting, however, that individuals are usually deemed competent to create a will or trust unless proved otherwise.

Many forego a health care directive when estate planning

A lot of estate planning is focused on distributing wealth upon an individual's passing. While this is certainly a significant portion of the estate planning process and there are a number of legal vehicles through which to achieve this, there are other matters that are of critical importance when creating an estate plan. One of them is long-term care planning, which often comprises of Medicaid planning and considering long-term care insurance. Yet, there is another issue that far too often goes overlooked during estate planning: health care decisions when incapacitated.

It's a scary situation to think about, but many individuals in California wind up unable to make their own health care decisions due to incapacity. This can create a whole host of complications, and ultimately the decisions made may go against what an individual would want if he or she were able to make these decisions him or herself.

Wills, trusts and no-contest clauses

Many Californians who establish wills and trusts simply want their assets to be distributed in accordance with their wishes while avoiding conflict. This is especially true when loved ones are written out of an estate plan or assets are distributed in a lopsided fashion. In these instances, an estate planning document may be legally challenged. Sometimes beneficiaries, or those who thought they should have been a beneficiary, claim that a will or trust was created under coercion, duress, or undue influence. In other cases, a will is challenged on other grounds, such as failing to adhere to statutory requirements.

To avoid these disputes, Californians may be tempted to create no-contest clauses in their estate planning documents. These clauses essentially penalize a beneficiary in the event that they choose to take legal action to challenge the validity or accuracy of an estate planning document. California generally disfavors these types of clauses, but there are certain circumstances when they will be deemed enforceable. Knowing how to craft an enforceable no-contest clause can be crucial to successfully developing one's estate plan.

What estate plans are necessary for parents of young children?

When you find out that you are expecting a baby, you have a lot of things that you need to take care of. One task might be something you haven't thought of – your estate plan. This is what can help to ensure that your child is taken care of if something happens to you.

The bare bones of the estate plan are still necessary. This includes your will and any trusts you choose to establish so that your assets can be handed down to the heirs you choose. You can use these to care for your children, so make sure that you have them set up in a way that does this.

Nursing home planning and the care plan

Considering your potential need for long-term care isn't an easy feat. After all, it requires you to consider the possibility that there may come a time when you are no longer able to adequately care for yourself. It can also be a financial challenge given that long-term care can be quite expensive.

Under federal and state laws, nursing homes must develop a care plan for every patient. To create a care plan, a nursing home gathers medical information and reviews each patient's health condition to determine the level of care needed and how best to provide it. An appropriate care plan will ensure that you receive the right kind of personal and health care services administered by appropriate staff members. The care plan will also ensure that your diet contains adequate nutrition to meet your needs, that you have equipment at your disposal to meet your needs, and that your nursing home services are provided with an appropriate frequency.

Is a spendthrift trust right for your estate plan?

Most Californians who engage in estate planning do so in order to protect their loved ones' financial well-being as fully as possible. These people also tend to hope that their estate will be well protected, ensuring long-term viability and thereby creating a sense that their legacy will be established.

This is certainly attainable when the proper estate planning tools are utilized, but individuals need to be familiar with their estate planning options to ensure that they are making the informed decisions that further the interest of their estate and their loved ones.

Some common issues with trust administration

A trust can be a great way to protect assets for loved ones who are set to inherit them. Yet, the effectiveness of a trust is often left in the hands of a trust administrator. This person may be named by the individual who created the trust, or he or she may be appointed by the probate court. Either way, the trust administrator, also called a trustee, carries a heavy responsibility that often comes under close scrutiny.

Trust administrators are considered fiduciaries, meaning that they have a duty to act in the best interests of named beneficiaries. Therefore, in some cases beneficiaries claim that trust administrators fail to properly invest trust assets in a way that further the beneficiary's best interests.

Estate litigation can help protect a loved one's legacy

In the days and weeks following the death of a loved one, family and friends often come together in unity as a way to honor and remember the recently passed. While these moments can help build solidarity, they can quickly be forgotten when the deceased's wishes are revealed in his or her estate plan.

For some families, there is nothing surprising in their loved one's estate plan. For other families, though, certain members may find themselves utterly shocked when they find out how their loved one's assets are to be managed and distributed.

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