WHAT DOES YOUR TITLE SAY ABOUT YOU?

Question: My husband and I hold title to our home as husband and wife as community property. Does that mean if he dies, I will automatically own that property?

Answer: The answer is not always an absolute “yes” to this question.

There are various ways people can hold title to assets. Often, how people hold title on their property, such as real estate and bank accounts, may be the only estate planning they have done. Unfortunately, it may NOT always be what their estate planning wishes are. Additionally, if people have done a trust and/or a will, how they hold title to some of their assets may completely conflict and sometime even override what their trust or will provides.

For example, let’s say you and your husband bought your home last year and took title as “husband and wife, as community property”. It was your mutual intent that when one of you dies, the other will own the home 100% and without any court involvement. Now, if you and your husband have no will or trust or if your will or trust provides that all your community property shall pass to the surviving spouse, then the answer to the question would be “yes”.

But now let’s say your husband has a will which provides that upon his death, all of his estate (this includes his separate property and his 50% interest in the community property) is to be shared equally between you and his two children from his first marriage. In this scenario, when your husband dies, you would NOT inherit his entire share of the home, but would have to split it (along with the rest of his estate) with his two children. The reason is that in 2001, California adopted a new form of title “community property with right of survivorship”. This is different than the form of title “community property”. When someone holds title as “community property” it provides a person the ability to bequeath their ownership interest in their community property assets to someone other than a surviving spouse through wills or trust. When you hold title as “community property with right of survivorship”, you cannot. The surviving spouse becomes the sole surviving owner of all community property under this form of title, regardless of what wills or trusts may provide. This is similar to joint tenancy where the surviving joint tenant becomes sole owner upon death.

So what does the form of title say about you and your estate plan? To find out more and call 925-516-1617 to schedule a consultation at ALVIS FRANTZ AND ASSOCIATES, where your legal challenges just got easier!

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.

This information on this site is designed to provide a general overview with regard to the subject matter covered and may not be state specific. The authors, publisher and host are not providing legal, accounting, tax or other specific advice to your situation.

Copyright © 2011 Alvis Frantz and Associates.

I'll DO IT TOMORROW

Don't we all just love thinking about making our legal plans and thinking about our own mortality? I mean, really, there is just nothing more exciting, right? Okay really, we'd much rather spend our time watching water boil than think about who will take care of our kids if we should die or who will be the one to tell the doctor to pull the plug if all hope is lost.

Did you know that it is estimated that only about 1/3 of all adult Americans have actually taking the time to prepare the life and estate plans? So what about the other 2/3 of the population? Are they just simply irresponsible. Not likely. So maybe it is just a matter of procrastination. I mean, if we're young, healthy, etc, thinking about our death seems years away.

So what causes people to procrastinate with this very important task people must handle.
It really is normal behavior to avoid things that are unpleasant. How many look forward to doing our taxes... even if we know we will get a refund... it is just the "hassle" of gathering all the paperwork. We all know that death is unavoidable and that we should get our affairs in order to prepare for it and to ensure our families are protected. But since most adults under the age of 60 do no see their death as being in the near future, they don't see the urgency to plan now.

I mean, people are living longer these days so even if you live to a ripe old age, however, the downside is that, the longer you live, the greater your chances of wearing out physically and mentally before you pass on. Have you visited a nursing home lately?

So part of the "unpleasant-ness" of estate planning is people's age (or lack of old age for some), for some it may be the "hassle" of paperwork, for others it may be avoiding interpersonal relationships. For example, maybe you are not on good terms with family members and therefore, deciding who will take care of your children and/or who should inherit your assets, is some you have no idea what to do about. Whatever the reason, is really is just another excuse.

Excuses, Excuses - we all have them and I am sure we all can justify and rationalize a "reason" why we procrastinate on something. It is an amazing talent we, as humans, have mastered to a tee.

Take these rational excuses as examples to why someone has not set up their estate plan yet:

"We don’t have time, because we are getting ready to do some traveling."

Ironically, most people spend more time packing their luggage, than they do making proper estate plans. And in the the worse case scenario... what if something happens during the flight?

"My son can’t get away from work to come with me for an initial consultation."

Well, if you wait until you are incapacitated or dead, your son can take off work to sort through your assets, squabble with his siblings, hire an attorney and develop an almost first-name relationship with the probate judge.

"Since my children all get along, there’s no need to bother with any planning."

That may be true, but will they know your specific wishes for your home, your bank accounts and your investments, not to mention your heirlooms like the kind over which you and your siblings fought after your parents died.

"We don’t have an estate tax problem." or "Why, my business has no value without me."

Perhaps, but the IRS may not agree with you, especially given your inventory, equipment, real estate, loyal customer base and goodwill.

"It’s too expensive."

You have spent a lifetime working hard to build your estate. A small investment now will save potentially tens to hundreds of thousands of dollars in unnecessary probate costs and taxes. What price tag can you put on that kind of peace of mind?

SO WHAT ARE YOU STILL WAITING FOR?

Don't we all know someone or a friend of someone who has gone through the devastating emotional and financial hardship when a loved one has passed away without proper planning. Wouldn't you sleep better at night knowing you wont have to place your family in that predicament when you overcome your estate planning procrastination.

Schedule an estate planning consultation today... it's free... so what are you still waiting for? Call 925-301-7195 or visit www.LivingTrustsbyAmy.com for more information.

Conservatorships...What, why, who, and how to prevent them

WHAT:

A conservatorship is when someone is legally appointed to be responsible for the financial affairs of another person who has been legally deemed to be unable to manage their financial affairs for him or herself. (Also known as guardianship of the “estate” – typically as it may relate to minor children vs. guardianship of the “person”)

WHY/WHO:

In many situations, a person may still be physically or mental able to care for themselves on a day to day basis, yet due to decreasing health, disability, judgment, etc, they may need help managing their finances. Examples may include, but are not limited to:

Persons with physical or mental condtions that prevent them from managing their own
financial affairs;

Persons who have legal authority to take over responsibility for them; and

When other forms of help with financial management will not adequately protect them.

HOW:

A conservator is typically appointed through probate court proceedings. A petition must be filed with the probate court by anyone who has a concern for an individual's financial well-being.

The petitioner has a buden to prove the individual is unable to manage their financial affairs on their own supported by medical and/or other sworn statements with any other supporting evidence. There is generally a court hearing, and if there is a contest by the allegedly incompetent individual and/or as to who hould be appointed as the conservator, the case will typically go to trail.

Once appointed, a conservator assumes financial management for the conservatee and generally receives compensation for performing these duties. This compensation is overseen by the court and is paid from the assets of the incompetent individual. The conservator will be also be responsible to account for all expenditures, and for the assets of the estate, typically on an annual basis or more frequently if ordered by the court.

If the legally incapacitated person is capable of participating in financial decisions, the conservator is ordinarily required to permit the legally incapacitated person to participate to the extent he or she is able. In some circumstances, a court may appoint a conservator to perform a certain set of tasks which are beyond the ability of the legally incapacitated person, while permitting that person to manage his or her own affairs for other financial tasks which remain within his or her ability.

CHECKS AND BALANCES:

The court supervises the conservator's actions by requiring that permission be obtained in advance of certain major transactions (i.e. home sales, withdrawal of retirement investments, etc), and through annual accountings, in order to ensure that the legally incapacitated person's assets are being properly managed, bills are being paid, nobody is misappropriating funds, and the estate is not being wasted.

ENDING:

A conservatorship can be terminated by the court which created it. This ordinarily happens if the legally incapacitated person recovers from the incapacity that necessitated the conservatorship. A particular conservator's role may be terminated by the court or by resignation, in which case the court will ordinarily appoint a successor conservator to take over management of the legally incapacitated person's assets. A conservatorship also ends upon the death of the legally incapacitated person.

HOW TO PREVENT THEM - OR AT LEAST CHOOSE YOUR CONSERVATOR IN ADVANCE:

Through proper estate planning, a general or springing durable power of attorney will allow you to appoint someone you trust (as well as some alternates) to manage your financial affairs in the event of your incapacity or incompetency. These powers may be broad or limited in scope. For example, you may name one person to manage all of your personal financial affairs and another person to manage business affairs on your behalf if the need arises. You may also leave some powers to be controlled by a court for additional protection if you so desire. With a properly executed power of attorney with nominated agents and conservators, those persons nominated by you may not have to seek appointment by the court in the event of your incapacity or incompetency.

Additionally, when assets are placed in a living trust, the sucessor trustee also has power to manage your affairs in the event of incapacity, for which a will alone does not provide.



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 between Amy Alvis and/or Living Trusts by Amy. The opinions expressed at or through this site are the opinions of the individual authors and does not reflect the opinions of any firm or attorney.

Fraudulent Transfers - BEWARE

Did you know that when someone tries to do something to remove an asset to avoid creditors after a lawsuit has been filed, is is most likely a "fraudulent conveyance". If has been recommended that individuals in high risk professions must keep some assets available to creditors so that the courts don't look to seize assets that may have been transferred to relatives or into protected entities (S Corps, LLC, Irrevocable Trusts, etc.)

If you tried to establish and irrevocable trust as a way to protect family assets from future lawsuits, make sure you discuss the laws against defrauding creditors (present and future) that may be relevant to any asset transfers into said trust as a way to keep those assets out of the reach of creditors.

In essence, a fraudulent conveyance requires that someone transfer an asset with the INTENTION of hindering, delaying or defrauding creditors.

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 between Amy Alvis and/or Living Trusts by Amy. The opinions expressed at or through this site are the opinions of the individual authors and does not reflect the opinions of any firm or attorney.

Have You Unintentionally Disinherited Your Kids?

Jim formed a close friendship with his widowed neighbor after the death of his wife of 38 years as a way to cope with his loss. After time, this friendship grew and soon after, they were married. Unfortunately, a few years later, Jim died and because he had moved all of his assets into joint tenancy with his new wife, all his assets went directly to his new wife, completly disinheriting his children.

How have you planned your estate? If you have everything left to your spouse, what will happen if you die first. Even if he or she doesn't remarry, as in Jim's case, will he or she be able to manage their assets on their own? Have your planned for the potential for incapacity? With the number of blended families these days, the problem of how to provide for your spouse without disinheriting your children (especially those from a previous marriage) is huge.

So how can we solve these problems? A trust can provide for your surviving spouse while he or she is living, then upon your spouse's death, the remaining assets will go to your children. Depending on the size of your estate, some assets could be segregated out specifically for your children and/or grandchildren. A trust will give you added assurance - it can protect your children's inheritances.

Each family is unique, which is why it takes careful planning with an experienced attorney who can look at various factors and options for your specific needs. CALL LIVING TRUSTS BY AMY 925-301-7195 TODAY to schedule your free 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.

Living Trusts by Amy

Did you know that over 50% of adults have not prepared for their death with a will or trust? Did you know that 100% of adults will die? The problem is that we don't have a crystal ball to tell us when that will happen. So ask yourself, what would today look like for your family, if you had died yesterday? Are they properly taken care of? What will happen to your assets? Will your family have to struggle with the time and expense of probate? Will there be an estate tax bill left for your heirs to resolve? What will happen to your children? Worse yet, what if you and your spouse both die and you leave minor children behind, who will take care of them?

If you answered, "I don't know" to any one of these questions, then you MUST start figuring out the answers to these, and many other questions. That is where I can help. By sitting down and discussing what is important to you and your family, I can help you identify your estate planning needs and start you on your way to PRESERVING YOUR ASSETS and PROTECTING YOUR FAMILY.

Disclaimer: 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.
So give me a call at 925-301-7195 to schedule your FREE CONSULTATION TODAY! There is no obligation and my goal for my clients is to "SECURE PEACE OF MIND, ONE TRUST AT A TIME".

FOR MORE INFORMATION OF SERVICES PROVIDED BY LIVING TRUST BY AMY VISIT ME AT http://www.livingtrustsbyamy.com/