Frequently Asked Questions
The Law Offices of Andrew Cohen assists Santa Clarita Valley residents in estate planning and family care matters, including the preparation of wills and trusts, probate and trust administration, and legal services for people with special needs. Below we address some general questions and concerns that clients often have when they come to our offices. For specific information regarding your unique situation, please contact our offices in Valencia and schedule a free initial consultation.
Will I Lose Control Of My Property And Assets If I Place Them Into A Trust?
With a revocable living trust, you will not lose control of the property and assets that you place in the trust. “Revocable” means that you can revoke or amend the trust whenever and however you wish, and “living” means that the trust is legally in existence during your lifetime to use for the benefit of you and your family. You may be the trustee of your living trust, which means you manage and direct the use of the property and assets in the trust, and you will name a “successor trustee” to take over upon your death. After your passing, the successor trustee will generally either distribute the trust property to your beneficiaries, or continue to hold the property and manage the trust in accordance with the terms you have specified in your trust document.
Unlike a revocable living trust, an “irrevocable” trust is, as the name implies, irrevocable in nature, meaning you cannot change or amend the trust once it is established except under limited circumstances and with a court order. An irrevocable trust also typically requires you to relinquish control of property that is held in the irrevocable trust. However, an irrevocable trust is often a superior way to secure tax benefits and asset protection. Once we evaluate your personal and financial situation and assess your needs and goals, we will make specific recommendations regarding the type of trust that is the most appropriate for you.
What Is A "Living" Will?
A living will is distinct from a basic will, which provides for how your assets will be distributed to your heirs and beneficiaries. With a living will, you provide instructions for how you want to be treated if certain medical conditions should arise in the future. For example, you may express your preferences as to treatment using life-sustaining equipment if you are terminally ill or injured, or whether you wish to be given food and water via intravenous devices. A living will also allow you to appoint someone to make such decisions for you if you become incapacitated.
Advance health care directives are the most recent incarnation of the living will, and basically perform the same function of letting your doctor, family, and friends know your health care preferences, including the types of special treatment you do or do not want at the end of your life. Advance health care directives are generally more complete than living wills, however, they also addressing issues such as diagnostic testing, surgical procedures, cardiopulmonary resuscitation, and organ donation.
Am I Automatically Considered The Legal Guardian Of My Adult Child With Special Needs?
While many parents assume they will continue to be their disabled child’s legal guardian through the child’s entire life, once a child reaches the age of 18, he or she is considered an adult and presumed to be competent, notwithstanding disability and/or dependency. If your adult child with special needs does not have the capacity to make informed choices with regard to finances, personal hygiene, maintaining a household, or other basic adult responsibilities, you may need to establish legal guardianship of your child.
We can help you through every step of the guardianship process, which generally involves gathering statements from physicians, filing and serving required documents to interested parties, and participating in court competency hearings. We also provide guidance and representation to clients following the establishment of a guardianship or conservatorship, including advising guardians and conservators of their fiduciary duties and obligations, filing accountings with the court, and assisting with other issues and tasks arising during the administration of a guardianship or conservatorship.
What Information Do I Need To Present To An Estate Planning Attorney?
There are various documents you may need to present to your estate planning attorney. In general, we encourage you to gather the following documents for when you first meet with your estate planning lawyer or shortly after:
- Grant deeds to real estate
- Financial statements
- Business agreements
- Retirement account information
- Brokerage account information
- Life insurance policy information
- Copies of your current estate plan documents
- Trademark, patent, or copyright registration information
- Divorce agreements, premarital agreements, or other relevant contracts
If you are unsure what to bring, contact your attorney’s office and ask for detailed information. In general, your attorney can provide you with a checklist of items so that nothing gets left at home or forgotten.
Why Do I Need An Attorney For Estate Planning?
There are a variety of reasons why you may need an estate planning attorney. It is incredibly beneficial for individuals and families to begin making end-of-life plans long before that time approaches. People who have a sound estate plan in place have peace of mind knowing that their wishes will be honored and their loved ones will be cared for after they pass.
An experienced estate planning attorney will know what questions to ask, think through numerous issues, discuss how to handle conflicting wishes, make recommendations and just be a good sounding board to guide clients in making choices and decisions as part of the planning and design process. An asset protection attorney will ensure that the wishes of the deceased are carried out appropriately.
Do All Assets Go Through Probate When A Person Dies?
Without a private estate plan in place, most types of assets will be required to go through a probate administration after someone passes away. While some classes of assets can avoid probate, doing so may cause exposure to unnecessary taxes, lead to loss of control, or be mishandled by young beneficiaries or those who just aren’t yet financially responsible. We strongly encourage you to speak with a skilled estate planning attorney for assistance with these matters.
If there is not a private estate plan in place and the assets in question are not part of a trust, then they will likely have to go through the probate process. Some of the most common assets that go through probate in California include bank accounts, investment accounts, homes, other real estate, businesses, vehicles, jewelry and personal property.
How Are Taxes Handled In Probate?
Death may have a significant effect on an estate’s federal and state taxes. Death marks the last tax year for the decedent while also establishing a separate tax entity for the “estate.”
Federal and state taxes will generally be handled by the executor of the estate (paid for by the estate). The executor will be responsible for ensuring that federal income tax and state income taxes are paid, as well as California fiduciary income tax returns during the probate process, any estate tax, and any gift tax returns. There may be additional taxes involved in these cases, including real estate and property taxes, business taxes, and various other state taxes.
Additionally, the executor of the estate needs to find if taxes were owed by the decedent for the years preceding their death.
What Are Responsibilities Of An Executor Or Administrator?
Being appointed as an executor or administrator of a will or estate can impose personal liability on the person appointed should they fail to perform their duties as required. Once appointed, an executor or administrator operates the estate much like someone runs a business. The executor or administrator will ensure that debts are paid, assets are cared for, taxes are paid, and will oversee distribution of the remaining assets to the beneficiaries. The executor will be responsible for defending against legal actions brought against the estate.
Some other common duties of an executor or an administrator include the following:
- Locating and caring for assets of the estate.
- Paying expenses to maintain assets.
- Paying expenses to keep assets secure (mortgage payments, utility bills, insurance payments).
- Paying income taxes as they come due.
- Handling day-to-day details concerning the assets.
- Establishing an estate bank account or brokerage account, if necessary, to keep income flowing.
- Paying state taxes.
- Locating the heirs of the estate and keeping them advised of progress.
- Supervising distribution of assets and filing necessary petitions with the court in California.
Who Can Contest A Will?
A person must have “standing” to contest a will. A person seeking to contest a will must have the legal right to bring the contest in the first place. In California, only an “interested person” has the standing to contest a will, which means a person who stands to benefit or lose something as a result of litigation. Typically, this will be a legal heir of the estate, a beneficiary under the current will or a previous will, or a creditor of the estate.
There must be legal grounds for an “interested person” to contest a will. Simply being unhappy with an inheritance is an insufficient motive to contest a will in California. There are various reasons why a will may be declared invalid in this state, and we strongly suggest that you work with a skilled will and trust attorney if you think you may need to contest a will.
Is A Will That Was Prepared In A Different State Valid In California?
It is very likely that a will created out side California will be valid inside the state. As long as the will was properly prepared and signed under the laws of the other state, it will generally remain valid regardless of which state a person passes away in. However, we suggest that you work with a California estate planning attorney to have a new set of documents prepared or revised in order to ensure they comply with California’s legal requirements concerning wills, particularly for married couples moving from a common law separate property state to California, a community property state.