Unfortunately, despite what most people believe, the answer to this question is not always “No”. Yes, a properly drafted living trust is very effective at avoiding probate of your estate at death; however, there are several situations which can arise which will require some, or maybe even all, of your assets to still have to go through probate. In fact, many of the probate cases I handle for my clients are for one or two assets that were just not in the decedent’s living trust.
One primary reason for this is that when people create their living trust, especially when they try one of the “do it yourself” methods, they fail to properly “fund” the trust. What this means is that they do not re-title all of their assets like real estate, bank accounts, and brokerage accounts into their living trust.
Another reason for this is that people simply fail to review their trusts and assets on a regular basis to ensure that they are still funded in their trust. For example, it is extremely common that when you refinance your home, the lender will require you to pull the property out of your living trust to fund the loan. After escrow closes, people often forget to put the property back into their trust and then, when they pass away, they have a piece of real property out of their trust that requires a probate action to put it back in the trust.
Problems like this can be avoided by many easy steps. The most obvious and least expensive way to do this is to be sure all of your assets are funded in your trust and to have an annual trust review. Another important step really goes back to the formation of your estate plan and having the proper contingencies in place. This is in the drafting language in the living trust and all the supporting documentation to your living trust. With proper planning and evidence, there are ways to petition the court to transfer assets back into your living trust, even after your death, without a formal, lengthy, and expensive probate proceeding. To find out more about how you can ensure your living trust will avoid probate, call Amy Alvis at Alvis Frantz and Associates, A PC at (925) 516-1617.
HAVE A LEGA L QUEST ION YOU WANT TO SEE ANSWERED HERE?
Go to our website http://www.alvisfrantzlaw.com/ and “Contact Us”.
Disclaimer: The information provided is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to your particular issue or problem. Use of this information or any related information does not create an attorney-client relationship. The opinions expressed are the opinions of the individual authors and does not reflect the opinions of any firm or attorney.
Wednesday, November 24, 2010
Thursday, September 2, 2010
Have you had "the talk" with your PARENTS?
Reading another blog reminded me how often I am talking with my clients about sharing their estate plan and their health care wishes with their children. But it is easy to overlook the fact that if your parents are still around, you may be the one to have to have that conversation with THEM, as they may not be as open to bringing it us with you.
Your homework for today is to make a date to have this conversation with them. Some of the things you need to find out is:
1. Do they have will, living trust, powers of attorney for financial matters, and health care directives? If the answer is "No" then you need to have them make an appointment with a attorney right away and get something in place" If the answer is "Yes", find out when the last time they have reviewed it and make sure it will still meet their objectives, and if they have a trust, if all of their property is still funded to the trust. If you are not sure, having a trust review by an attorney is a small but very wise investment.
2. If they have them, where are your parents estate plan documents? In the house? In a safe? If so, where the combination? Is it with their attorney? If so, find out who they are and if they still have your parent's documents or have they retired and sold them to another firm? Are they in a safe deposit box? If so - where's the key - is there a power of attorney on hand so that someone will have the ability to access the box to get to their documents?
3. Are you named as the manager of their estate if they become incapacitated? If so, are you okay with that role. If not, do you know who is so that you can contact that person and notify them if/when something happens.
4. Do you know what their health care and end of life wishes are. Having this discussion will alleviate a lot of guilt and uncertainty later.
5. Have they met with a tax planner to identify an estate tax or income tax needs they may have and if so, have they addressed those objectives with that planner.
Spending a bit of time going over these questions with your parents can help identify what needs to be done now to reduce the stress, anxiety and financial burdens of having to manage their estate later from the lack of proper planning and estate plan maintenance.
Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
Your homework for today is to make a date to have this conversation with them. Some of the things you need to find out is:
1. Do they have will, living trust, powers of attorney for financial matters, and health care directives? If the answer is "No" then you need to have them make an appointment with a attorney right away and get something in place" If the answer is "Yes", find out when the last time they have reviewed it and make sure it will still meet their objectives, and if they have a trust, if all of their property is still funded to the trust. If you are not sure, having a trust review by an attorney is a small but very wise investment.
2. If they have them, where are your parents estate plan documents? In the house? In a safe? If so, where the combination? Is it with their attorney? If so, find out who they are and if they still have your parent's documents or have they retired and sold them to another firm? Are they in a safe deposit box? If so - where's the key - is there a power of attorney on hand so that someone will have the ability to access the box to get to their documents?
3. Are you named as the manager of their estate if they become incapacitated? If so, are you okay with that role. If not, do you know who is so that you can contact that person and notify them if/when something happens.
4. Do you know what their health care and end of life wishes are. Having this discussion will alleviate a lot of guilt and uncertainty later.
5. Have they met with a tax planner to identify an estate tax or income tax needs they may have and if so, have they addressed those objectives with that planner.
Spending a bit of time going over these questions with your parents can help identify what needs to be done now to reduce the stress, anxiety and financial burdens of having to manage their estate later from the lack of proper planning and estate plan maintenance.
Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
Wednesday, September 1, 2010
LIVING TRUSTS AND ESTATE PLANNING: A MUST FOR EVERY BUSINESS OWNER
Business owners survive many challenges and for family businesses, there are some unique challenges to protect and preserve your business… and your family. A living trust is an estate planning tool business owners can use to help their business continue to run after their death.
LIVING TRUSTS CAN:
• Avoid probate. Probate is the legal process where the court validates your will, sees that your debts are paid, and interprets your will to determine how and to whom your assets are distributed. The major problems with probate are that it is expensive, lengthy, public, and it places all the control in the hands of the probate courts.
Having a living trust will ensure that your estate will be settled quickly, privately, and inexpensively as it keeps your estate out of probate and allows you to maintain full control over the distribution of your assets and your business.
• Minimize or Eliminate Estate Taxes. A living trust can provide a means to reduce, or even eliminate estate taxes. With fewer tax burdens, there are fewer debts to satisfy and a better outlook for the continued health of the business as well as your families’ future.
• Create a Business Succession Plan. Establishing a system within your business will create a plan for someone to succeed you so that your business can continue to run smoothly without you. The death of a business owner causes a number of problems which can be addressed with proper planning, one of which is that the value of your business may be drastically reduce without you there to run the show unless you plan ahead. Ask yourself:
• Should the business remain in the family?
• Are there capable successors/owners?
• Should the business be sold? If so, to whom and at what price.
ESTATE PLANNING CAN:
• Minimize loss of business assets: What people may not consider is that often, assets from a business may have to be used to satisfy the personal debts of a business owner. When there are not enough personal assets to satisfy personal debts, the creditors/government will go after business assets to satisfy these debts. This may leave a business strapped or even insolvent. However, with proper estate planning, you can protect your business and allow it to continue and grow after you die.
• Plan for the financial needs of your estate. Take a look at your personal assets and debts. Can your family continue to survive based on your financial picture as it is today? If you do not have enough personal assets to cover your personal debts, start to put more money aside to cover those debts. Another option is to purchase life insurance. For many, life insurance can be a quick and less costly solution. Life insurance will provide you and your heirs with an immediate guarantee that when you die, the proceeds from the life insurance can be used to satisfy the personal debts, thereby, allowing your business to continue unharmed.
For many small business owners, it can be difficult to separate business and estate planning as they are each contingent on the other. With proper planning and advice, you can ensure that your family and your business will continue to survive when you are no longer there to hold the reins.
LIVING TRUSTS CAN:
• Avoid probate. Probate is the legal process where the court validates your will, sees that your debts are paid, and interprets your will to determine how and to whom your assets are distributed. The major problems with probate are that it is expensive, lengthy, public, and it places all the control in the hands of the probate courts.
Having a living trust will ensure that your estate will be settled quickly, privately, and inexpensively as it keeps your estate out of probate and allows you to maintain full control over the distribution of your assets and your business.
• Minimize or Eliminate Estate Taxes. A living trust can provide a means to reduce, or even eliminate estate taxes. With fewer tax burdens, there are fewer debts to satisfy and a better outlook for the continued health of the business as well as your families’ future.
• Create a Business Succession Plan. Establishing a system within your business will create a plan for someone to succeed you so that your business can continue to run smoothly without you. The death of a business owner causes a number of problems which can be addressed with proper planning, one of which is that the value of your business may be drastically reduce without you there to run the show unless you plan ahead. Ask yourself:
• Should the business remain in the family?
• Are there capable successors/owners?
• Should the business be sold? If so, to whom and at what price.
ESTATE PLANNING CAN:
• Minimize loss of business assets: What people may not consider is that often, assets from a business may have to be used to satisfy the personal debts of a business owner. When there are not enough personal assets to satisfy personal debts, the creditors/government will go after business assets to satisfy these debts. This may leave a business strapped or even insolvent. However, with proper estate planning, you can protect your business and allow it to continue and grow after you die.
• Plan for the financial needs of your estate. Take a look at your personal assets and debts. Can your family continue to survive based on your financial picture as it is today? If you do not have enough personal assets to cover your personal debts, start to put more money aside to cover those debts. Another option is to purchase life insurance. For many, life insurance can be a quick and less costly solution. Life insurance will provide you and your heirs with an immediate guarantee that when you die, the proceeds from the life insurance can be used to satisfy the personal debts, thereby, allowing your business to continue unharmed.
For many small business owners, it can be difficult to separate business and estate planning as they are each contingent on the other. With proper planning and advice, you can ensure that your family and your business will continue to survive when you are no longer there to hold the reins.
Tuesday, June 29, 2010
Have you had your trust check up lately?
Please remember to review your trust each year. Make sure your home and your bank accounts are properly funded. Every probate I have handled this year are for families having to probate a parent's estate where there was a living trust but either the home, or a bank account was outside of the trust.
Haven't had a trust check up in a while, call Alvis Frantz and Associates and get your trust check up today. Call 925-516-1617!
Haven't had a trust check up in a while, call Alvis Frantz and Associates and get your trust check up today. Call 925-516-1617!
Wednesday, April 7, 2010
CONSERVATORSHIPS - The result of not preparing.
Client's mom & dad did their own trust. Dad is deceased and mom has alzheimers. Trust wasn't done right and there was no power of attorney. For son to get mom's property into her trust, he has to go to court to be appointed a conservator of mom's estate. Have your parents set up their estate plan properly? Call Amy Alvis at 516-1617 for an estate plan consult.
Tuesday, March 16, 2010
Pet Trusts are no joke. Have you protected your 4-Legged or Winged Friends?
In January 2009, California finally enacted Probate Code 152121 which provides the ability to draft legally enforceable trusts to provide for the care of your pets after your death or incapacity.
Before the law was enacted, planning for pets was a bit tricky and had to be done using loopholes - essentially because a "pet" could not be a valid beneficiary of a will or trust. Courts will now enforce trust that provide for pets and will even allow evidence supporting the intent of the trust or will maker in enforcing these pet trusts. Basically, these new pet trust will be subject to all provision of the Probate Code that govern wills and trusts.
Pet trusts can be designed to ensure that they only benefit the pet(s) (and not the pet care taker) and to provide a reasonable compensation for the person you appoint to manage the pet trust (trustee). The trusts will also provide for a distribution of any unused funds after your pet dies. Furthermore, if there is not enough money left in the trust to care for your pet, the trust should be designed to allow for the trust to terminate.
If you are concerned about how you pet trust is managed, you can also name an "enforcer" of the trust. Depending on how much money you are setting aside, this may be an important planning concern. The other side of this though is that you may want to have your trust drafted to prevent or limit any third party inspections of your trust as is allowed under the new law. The law allows that any person interested in the welfare of your pet or even a charity whose main activity is the care of animals can seek court approval to be appointed as an "enforcer" of your pet trust. These enforcers may have powers that you do not want an outsider person or organization to have.
Finally, as is the case with all trusts, pet trusts must be reviewed every year or so to be certain that your wishes and objectives are still being met as laws and life are perpetually changing.
For more information on how to protect your pets with a pet trust, call 925-516-1617 or email info@alvisfrantzlaw.com to schedule a consultation.
Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
Before the law was enacted, planning for pets was a bit tricky and had to be done using loopholes - essentially because a "pet" could not be a valid beneficiary of a will or trust. Courts will now enforce trust that provide for pets and will even allow evidence supporting the intent of the trust or will maker in enforcing these pet trusts. Basically, these new pet trust will be subject to all provision of the Probate Code that govern wills and trusts.
Pet trusts can be designed to ensure that they only benefit the pet(s) (and not the pet care taker) and to provide a reasonable compensation for the person you appoint to manage the pet trust (trustee). The trusts will also provide for a distribution of any unused funds after your pet dies. Furthermore, if there is not enough money left in the trust to care for your pet, the trust should be designed to allow for the trust to terminate.
If you are concerned about how you pet trust is managed, you can also name an "enforcer" of the trust. Depending on how much money you are setting aside, this may be an important planning concern. The other side of this though is that you may want to have your trust drafted to prevent or limit any third party inspections of your trust as is allowed under the new law. The law allows that any person interested in the welfare of your pet or even a charity whose main activity is the care of animals can seek court approval to be appointed as an "enforcer" of your pet trust. These enforcers may have powers that you do not want an outsider person or organization to have.
Finally, as is the case with all trusts, pet trusts must be reviewed every year or so to be certain that your wishes and objectives are still being met as laws and life are perpetually changing.
For more information on how to protect your pets with a pet trust, call 925-516-1617 or email info@alvisfrantzlaw.com to schedule a consultation.
Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
Thursday, February 18, 2010
What happens to my Facebook, Email, Website when I die?
When we think about estate planning, we immediately think about how our wills and trusts will protect our physical possessions, our home and our money. But what about your Facebook account, your email, your twitter accounts or even your web site? (For those Facebook addicts.... who will make sure your Farmville crops get harvested when you are no longer able to tend your farm?) But seriously, even if you are not hip with the latest social media, almost everyone has some forms of online account such as email, bill pay, maybe even a dating site membership. All of these accounts have user i.d.'s and passwords. Does anyone else know this information or at least where you store this information in the event that something happens to you?
It is not always easy for someone to just call up Yahoo and ask them to close out an email account. Many internet providers consider this information to be private and will not just send you the passwords without legal authority. Google mail requires a copy of a death certificate, copy of a power of attorney or birth certificate and an email sent front the account you are trying to close. With MySpace, the account dies with the person.
So what is the solution? Keep a file of all your log in information on a flash drive or stored on your computer somewhere but name the file something unique... not "passwords". Give a copy of this to a trusted individual, your agent, successor trustee, executor, family member, etc. When you add log in information or change passwords, be sure to update that file as well. If you prefer not to give this file to anyone else, keep it in a safe or safe deposit box, but be sure to let someone know it exists, and where to find it.
Having a Power of Attorney is a great tool as well, but most powers do not specifically provide for the power to access internet and/or email accounts. Therefore proper drafting is important. I have created a provision specifically for just such a situation for my clients.
There are also companies out there, such as Legacy Locker, which acts like a safe deposit box for your log-ins, account information, etc. They also provide personalized instructions to survivors as to how you want your online identity handled.
Websites are another issue you may have to consider. If you have a website, what happens to it when you die? You can actually leave your website to a beneficiary - especially if your website provides you passive income, this could be a valuable asset you will want to protect with your estate planning.
So as you can see, estate planning has a variety of new issues to consider when planning, so meeting with a trust and estate attorney who is current on the latest web based media will put your estate plan one step ahead of the rest.
When we think about estate planning, we immediately think about how our wills and trusts will protect our
So as you can see, estate planning has a variety of new issues to consider when planning, so meeting with a trust and estate attorney who is current on the lastest web based media will put your estate plan one step ahead of the rest.
For more information, call Amy Alvis, Esq. at Alvis Frantz and Associates A Professional Law Firm (925) 516-1617, email at info@alvisfrantzlaw.com
Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
It is not always easy for someone to just call up Yahoo and ask them to close out an email account. Many internet providers consider this information to be private and will not just send you the passwords without legal authority. Google mail requires a copy of a death certificate, copy of a power of attorney or birth certificate and an email sent front the account you are trying to close. With MySpace, the account dies with the person.
So what is the solution? Keep a file of all your log in information on a flash drive or stored on your computer somewhere but name the file something unique... not "passwords". Give a copy of this to a trusted individual, your agent, successor trustee, executor, family member, etc. When you add log in information or change passwords, be sure to update that file as well. If you prefer not to give this file to anyone else, keep it in a safe or safe deposit box, but be sure to let someone know it exists, and where to find it.
Having a Power of Attorney is a great tool as well, but most powers do not specifically provide for the power to access internet and/or email accounts. Therefore proper drafting is important. I have created a provision specifically for just such a situation for my clients.
There are also companies out there, such as Legacy Locker, which acts like a safe deposit box for your log-ins, account information, etc. They also provide personalized instructions to survivors as to how you want your online identity handled.
Websites are another issue you may have to consider. If you have a website, what happens to it when you die? You can actually leave your website to a beneficiary - especially if your website provides you passive income, this could be a valuable asset you will want to protect with your estate planning.
So as you can see, estate planning has a variety of new issues to consider when planning, so meeting with a trust and estate attorney who is current on the latest web based media will put your estate plan one step ahead of the rest.
When we think about estate planning, we immediately think about how our wills and trusts will protect our
So as you can see, estate planning has a variety of new issues to consider when planning, so meeting with a trust and estate attorney who is current on the lastest web based media will put your estate plan one step ahead of the rest.
For more information, call Amy Alvis, Esq. at Alvis Frantz and Associates A Professional Law Firm (925) 516-1617, email at info@alvisfrantzlaw.com
Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
Wednesday, January 20, 2010
Are you moving? Don't forget to pack your estate plan... or should you?
One question people ask me when getting ready to set up their estate plan (trust(s), wills, powers of attorney, etc) is what happens if they move. It is really a good question.
States typically have different laws. Some states in the U.S. have adopted (either in its entirety or with some modifications) what is known as the "Uniform Probate Code" which basically means they all have the same laws with respect to wills, trusts, probates, etc. California is not one of them. But don't despair, this does not necessarily mean that if you move out of California (or have just moved to CA) you will have to start all over again with your estate plan documents.
A trust is esentially a contract, and contracts that are deemed valid in the state and at the time in which they were created, are enforceable in other states. So your trust for example, is still a valid document if you move out of the State. Wills are also treated the same. However, the real issue is that a trust is used to hold property by a trustee for the benefit of the beneficiaries.... so if you move, what property is the trust protecting now? If you no longer hold any assets in California, what you really need to do is to update your trust to ensure it holds all of your newly acquired assets and reflects the disposal of previously held assets.
It would also be advisable to check with an attorney in your new home state to see if any amendments are required to provide you with further protection in that state. For example, one state may have different STATE inheritance taxes than another and therefore added protections may need to be included in your trust.
Additionally, you may have named someone as a successor trustee/executor in your original trusts/wills and now they live 3000 miles away and the reality of it, is that it may no longer be a practical choice. In this case, amendments will need to be made to re-name a new successor trustee/executor.
Then there is the question of your Powers of Attorney both for your finances and for your health care. As mentioned above, the person you have previously named may logistically no longer be the best choice for your agent(s). For example, say your brother is named as your health care agent and lives back in California and you now live in Texas. You get in a terrible car accident and are in a coma and your leg is severly injured and may need to be amputated right away to save your life. Your brother can not get to you in time to be able to tell the doctors that, because you are a professional dancer and it is your passion above everything else in the world, you would rather risk your life than lose a leg, so with no agent available to act on your behalf, they chose to ampute.
And what about your children? In your will, you are able to name someone who will be their guardians if both parents die. If you really start to get settled in your new hometown, do you want your children to have to move to live with who had named as guardians? Maybe, maybe not. It is just one more thing to consider when you move and decide what part of your estate plan documents needs updating.
In many instances, a few simple updates are sufficient. Sometimes it may be easier (but yes, a bit more costly) to do what is called a "restated amendment" to your original trust. This is basically like starting from scratch but keeping the original name and date of your first trust so that all of your assets do not need to be retitled again.
For additional questions about what to do with your estate plan if you move, call Amy Alvis at the law offices of Alvis Frantz and Associates at 925-516-1617 or email us at info@alvisfrantzlaw.com
States typically have different laws. Some states in the U.S. have adopted (either in its entirety or with some modifications) what is known as the "Uniform Probate Code" which basically means they all have the same laws with respect to wills, trusts, probates, etc. California is not one of them. But don't despair, this does not necessarily mean that if you move out of California (or have just moved to CA) you will have to start all over again with your estate plan documents.
A trust is esentially a contract, and contracts that are deemed valid in the state and at the time in which they were created, are enforceable in other states. So your trust for example, is still a valid document if you move out of the State. Wills are also treated the same. However, the real issue is that a trust is used to hold property by a trustee for the benefit of the beneficiaries.... so if you move, what property is the trust protecting now? If you no longer hold any assets in California, what you really need to do is to update your trust to ensure it holds all of your newly acquired assets and reflects the disposal of previously held assets.
It would also be advisable to check with an attorney in your new home state to see if any amendments are required to provide you with further protection in that state. For example, one state may have different STATE inheritance taxes than another and therefore added protections may need to be included in your trust.
Additionally, you may have named someone as a successor trustee/executor in your original trusts/wills and now they live 3000 miles away and the reality of it, is that it may no longer be a practical choice. In this case, amendments will need to be made to re-name a new successor trustee/executor.
Then there is the question of your Powers of Attorney both for your finances and for your health care. As mentioned above, the person you have previously named may logistically no longer be the best choice for your agent(s). For example, say your brother is named as your health care agent and lives back in California and you now live in Texas. You get in a terrible car accident and are in a coma and your leg is severly injured and may need to be amputated right away to save your life. Your brother can not get to you in time to be able to tell the doctors that, because you are a professional dancer and it is your passion above everything else in the world, you would rather risk your life than lose a leg, so with no agent available to act on your behalf, they chose to ampute.
And what about your children? In your will, you are able to name someone who will be their guardians if both parents die. If you really start to get settled in your new hometown, do you want your children to have to move to live with who had named as guardians? Maybe, maybe not. It is just one more thing to consider when you move and decide what part of your estate plan documents needs updating.
In many instances, a few simple updates are sufficient. Sometimes it may be easier (but yes, a bit more costly) to do what is called a "restated amendment" to your original trust. This is basically like starting from scratch but keeping the original name and date of your first trust so that all of your assets do not need to be retitled again.
For additional questions about what to do with your estate plan if you move, call Amy Alvis at the law offices of Alvis Frantz and Associates at 925-516-1617 or email us at info@alvisfrantzlaw.com
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