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Sacramento Estate Planning Attorney

Sacramento Estate Planning Blog

Important estate planning considerations for same-sex couples

California has long been one of the more progressive states when it comes to marriage equality. The increased acceptance of same-sex unions has allowed many couples to prepare for the future with their estate plan. However, that does not alter the reality that there can be complications with a same-sex relationship. There are certain factors that should be remembered with such complicated estate planning.

Although same-sex marriage was legalized in the U.S., some couples might have gotten caught up in the past when certain states allowed it and others did not. The belief that the marriage might not have been legitimate prevented some from taking the proper legal steps if they parted ways, but were technically married. Failure to acknowledge this could be an issue if one of the partners or spouses dies and the assets are up for dispute.

What are the 2 kinds of probate guardianship in California?

Estate planning in California will have multiple issues that must be accounted for, but one that is a frequent cause for concern is guardianship. There are two kinds of probate guardianship in California and these must be understood by those who are concerned about a loved one after death. When drafting estate planning documents, it is essential to know whether there should be a guardianship and which kind is applicable if one is needed.

The first type of guardianship is the guardianship of the person. This means that the guardian will have the identical responsibilities to take care of the child as the parent has. The guardian will have full legal and physical custody and can decide about the child's care. It can be anyone the testator chooses. Included in the responsibilities will be shelter, food, clothing, safety, emotional growth, physical growth, medical care, dental care, education and more. The child will also need to be supervised by the guardian.

Drafting estate planning documents when married a second time

In California, it is not uncommon for people to marry more than once. Certain matters must be handled when in this situation, and one that many people forget is how to deal with drafting estate planning documents to account for the new marriage. This is especially worrisome if it is a blended family with children from both spouses' previous relationships becoming part of the equation. There are certain issues that might be forgotten, but are not any less important.

For people who own property or have financial portfolios, the assets and income might become mixed together. Having a joint account can be beneficial to pay debts, but some people keep individual accounts as well. This is a wise decision if there are entanglements with a former spouse. Creditors generally do not care about divorce settlements if both names are on the account, so this must be considered.

Late actor's assets in dispute despite cogent estate planning

For those that have significant wealth and blended families, drafting estate planning documents is especially important if the person wants to avoid probate and disagreements among their family members after death. These circumstances apply to many people in California, whether they are in the entertainment industry, in business or in some other endeavor that has led to them having substantial assets. It is an unfortunate reality that even if the person was diligent in estate planning, there can still be legal battles over the estate. Such is the case with the late actor and entertainer Alan Thicke.

Thicke's grown sons, Robin and Brennan, have filed a petition over the late actor's estate. The case was filed in Los Angeles. The sons are named as Thicke's co-trustees for his living trust. They assert that they are doing this to protect his legacy and his estate from their allegations of greed against his third wife.

Remember to draft a will to protect loved ones in California

While most Californians have a vague understanding of the importance of a will, it is still one of the issues about which people procrastinate the most. It is not easy to envision one's own death, but when there are loved ones whose future is likely to be at stake if the will is ignored, it becomes vital to take the necessary steps as soon as possible. This is true regardless of the person's age and financial circumstances. The will is an act of love to those left behind.

The terms of the will are a key factor in how assets and property will be distributed at the time of death. For people who are parents and have children under the age of 18, the will can name a guardian to care for the child. There are certain matters that are integral to any will. The following must be considered: minor children and a guardian; a living will to deal with health care in the event the person is not able to make decisions on his or her own; and a durable power of attorney to name a representative to oversee the person's financial affairs if he or she cannot do so.

Is avoiding probate possible in California? When?

For those in California who understand how complicated and contentious probate can be, the chance to avoid it should be considered. When estate planning, the person should also be aware of the options in avoiding probate. An example of when it is possible to avoid probate is if the property falls below a certain amount. If the person who died left $150,000 or less to the heirs, then it might not be necessary to go through the probate process.

A person who is legally entitled to inherit property such as a bank account or stocks could avoid probate if the value falls at or below $150,000. With the circumstances in place, the simplified process can be used to transfer that property into the person's name. The property value will be determined based on what it was worth on the date that the person died and not what it is worth at the moment. There are certain factors that must be remembered. If it is declared real property such as a house, this cannot be done. There is a form that must be filled out if the amount left was $150,000 or less. It is the Petition to Determine Succession to Real Property (Estates $150,000 or Less). With that there will need to be another form of Inventory and Appraisal filled out and notice given of a hearing.

Important considerations with estate planning

Estate planning in California should be thought of as a method of organizing one's life for the future when he or she is no longer there. It is a positive step for the heirs whether there is a substantial estate or one of more modest means and making sure that it is complete and in place is a wise decision for anyone. Those who are reluctant to create a coherent estate plan should remember certain steps to take and realize that it is essential for their own peace of mind and their family's future.

Decisions must be made as to who will receive what when the person dies. To do this, there must be a list of assets, what wishes the person wants in place to distribute the assets, and who will carry them out. This should be known before moving forward with the legal documents. Having legal advice goes without saying. Even a smaller estate will have different issues that are of legal consequence and must be navigated according to the law.

Key points that are often ignored with wills

All California residents need to think about a future in which they are no longer here but their loved ones are. It is a difficult matter to reconcile one's mortality, but it is something that must be done. With that, a wills a necessary document for estate protection, to avoid inheritance issues and probate issues. There are several pieces of advice that people are well-advised to adhere to when striving to make certain that everything is organized for the future.

There is certain terminology that needs to be understood. The estate includes the assets that are owned and things that are financially based and that which is property like a home. Estate planning is making arrangements prior to death to make certain the wishes are carried out. Wills are documents to list where all the property should go after death. With an estate plan, taxes are always a consideration. A person does not want to leave loved ones with a hefty bill after death. There are methods that can be used to mitigate this.

A basic need for any estate plan is preserving the documents

While Californians are advised to take the necessary steps to have a coherent and well-organized estate plan, the basics are sometimes lost on them. The most foundational matter after moving forward with the document itself and having all the "I's" dotted and the "T's" crossed is to know where it is and be prepared for the time when heirs will need to find these documents. It might sound like a silly dispute, but litigation can result if the estate plan documents are nowhere to be found. With this in mind, there are certain steps to take.

People should keep the original documents in a safe location. The court might be reluctant to take copies or digital files to replace the originals. This is particularly true if the estate is being contested. This can degenerate into an unwinnable argument. It might also be necessary to have original copies of health care proxies and a power of attorney. These documents should be maintained in a sealed envelope with a notation as to what it is. Keeping them at home in a fireproof location is a good way to preserve them. A safe deposit box might seem like a good idea, but there could be problems accessing it after the person has died.

Pluses and minuses of a living trust (inter vivos trust)

For Californians, estate planning might be perceived as a dual-edged sword. On one hand, it is a strategy to make sure that loved ones are cared for and assets are allocated as the owner wants. On the other hand, it is acknowledging one's mortality and preparing for the inevitable. However, there are certain methods that are beneficial and should be considered even if it is difficult to contemplate. One is a trust. Specifically, a living trust (inter vivos trust) is a tactic that is useful. Knowing its benefits and potential drawbacks is key before deciding.

A living trust can make certain that the assets will be managed according to the person's desires. When the living trust is formulated, the person who is taking it out can be the trustee at the start or someone else can be chosen to do it. The trustee can be named to take over if the person is no longer able or willing to do so. When the person dies, the trustee will accrue the assets and pay whatever outstanding debts remain. The assets left over will be distributed as the person wanted. The difference between a will and a trust is that the trust assets can be distributed based on the trustee's decisions and there is no supervision or approval from the court.

My Sacramento law practice, Michael A. Sawamura, Attorney at Law, focuses on wills, trusts and estate planning law in addition to business law and corporate defense services. My clients include professionals, government employees, small businesses, blue-collar workers and national corporations.

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