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Sacramento Estate Planning Blog

A joint will is not always a good legal option

Readers of this Sacramento estate planning blog can find a great deal of information about wills on this site. However, one unique will-related topic has not received much attention but deserves a discussion to introduce readers to its interesting legal significance. That topic is the joint will, and the remainder of this post will offer an explanation of what a joint will is and why it may not serve the interests of those who create them.

A joint will is a will made by two people. Usually the two people are married. Once a joint will is created it cannot be revoked by one of the parties alone. In order to revoke a joint will, both of the parties must revoke it during their lifetimes.

Why may people want to avoid probate and how can they do so?

Whether or not their estate will go through probate may not be a huge concern for some California residents, since they will not be around to see how the process affects the disposition of their wealth and assets. However, a Californian who wants to take proactive steps to protect their wealth and the inheritances of their loved ones should understand why avoiding probate this is a good idea. This post will discuss why a person should work to keep their estate out of probate and how that goal may be achieved.

Probate is the legal process of settling a decedent's debts, paying their beneficiaries and ensuring that all of their assets have been dealt with properly. Probate can take a long time and depending upon the issues that affect the estate can cost an estate a lot of money. As a result, a person whose estate is probated may not end up bequeathing as much wealth to their loved ones as they intended because of the costs of the probate process.

Health proxy takes care of you when you are unable to do so

No one wants to imagine the day when they can no longer make decisions for themselves. While many Californians envision that this moment will not take place until many years into the future, the truth is that it only takes an accident or other life-changing incident for a person to lose their capacity to understand how best to meet their own needs.

This can be particularly true when a person is medically unable to make decisions about their own treatment and care. In a situation where a person is alive but unable to communicate their wishes about the steps taken to extend their life it is imperative that they have provided someone else with information on their wishes for treatment and interventions. A person who steps in and has the authority to make medical decisions for another is a proxy; the ability to take on this power is granted through a health proxy document.

What is a living trust?

Trusts may be created in two main ways. The first is at the end of a person's life. When a person passes on their estate may pass automatically into a trust if they have executed the appropriate estate planning documents. However, a person can also create a trust while they are alive. An inter vivos trust, also known as a living trust, is created by a grantor and administered by a trustee for the benefit of a beneficiary.

There are a number of reasons that California residents may want to create a living trust. The first is to avoid the probate process. In probate a person's estate is reviewed and debts are paid. It can take a long time to finish and can be expensive. To this end, even if individuals expect to receive inheritances from a decedent's estate those payouts may be lowered significantly by the probate process.

The fiduciary duty of the estate administrator of a will

Being asked to serve as the administrator of a loved one's estate is both an honor and an obligation imposed upon a California resident. Although a well-crafted estate plan that takes into consideration methods of avoiding probate and removing ambiguity from the plans testamentary documents is not necessarily hard to manage, knowing how to provide adequate oversight of the estate's distribution can be nerve-wracking. This post will discuss one of the most important aspects of serving as an estate administrator: exercising a fiduciary duty toward the estate.

Many legal relationships involve a duty between the parties. For example, when a doctor takes on a patient that medical professional has a duty of care to treat their patient at the standard expected of a doctor with their training and practicing in their geographic area. When a person is appointed the administrator of another person's estate and serve as the executor of their will then they take on the important duty of a fiduciary.

An estate plan should be made before it is too late

One of the requirements of a valid will in California is that the creator of the testamentary document is of sound mind when they sign their name to the will and make it official. A person who lacks the mental capacity to understand the terms of their will likely would not have the soundness of mind required by law to execute it, and to this end, if a person does not have a will when they lose their capacity to create one they may not be able to prepare one to protect their estate.

For example, consider a person who is diagnosed with dementia. At its onset, the disease may not rob the person of the soundness of their mind, but they may begin to exhibit some of the very earliest stages of the medical condition. If they elect not to create their will or any other estate planning documents, and assume that they will be able to so do at a later date, they may not be able to if their disease progresses and robs them of their intellectual capacity.

What is intestate succession in California?

An estate plan is intended to comprehensively dispose of a decedent's property, so that nothing is left over for the probate courts to claim and subject to the laws of distribution. In California and other jurisdictions, though, it is not uncommon for individuals to pass on without putting into place the wills, trusts and other testamentary documents necessary to ensure that the distribution of their wealth and assets is made clear. Because of this, the states of the nation have enacted intestate succession laws that designate how heirs may inherit from the decedents.

A person who dies without a will is said to have died intestate; this is where the terminology comes from. If a person is married how and how much of their property will pass to their spouse will depend upon the classification of the property (community, separate, etc.) and whether the decedent had children. The portion of their property that does not pass to their spouse will pass to their children.

Are holographic wills valid in California?

Most Californians imagine wills to be formal legal documents full of jargon and clauses that are typed on fancy paper and signed by serious witnesses. However, not all wills fall into this category. In California and other states throughout the nation, holographic wills are recognized as alternative testamentary documents to those that follow the formal requirements of will making.

A holographic will is one that is written out by hand by the will creator. It must be signed by the creator, and when it is being evaluated for authenticity the handwriting of the will and the signature must match that of the person who created it.

Proper estate plan can help avoid family disputes

Not long ago this Sacramento-based estate planning legal blog discussed the somewhat difficult topic of disinheritance. Through an estate plan a person may explicitly choose to exclude a relation who otherwise may have had a clear right to receive from the individual's end-of-life estate. This challenging theme often comes up when a person would like to prevent one of their children from having a claim to their assets and wealth.

Although disinheritance may seem like a topic that could incite familial infighting, estate planning can actually be a good way to prevent conflicts between family members when a loved one has died. A clear and carefully crafted will may directly state which relations will benefit from the decedent's assets and how others should or should not benefit from the remainder.

Undue influence and manipulation in the drafting of a will

A will should reflect the wishes of the California resident executing it, and should effectuate their desires in terms of the distribution of their assets upon their death. In fact, if a will is suspected to have been executed by someone who did not understand the contents of it or who did not have the capacity to recognize what their will would do, then the will may not stand as valid. A will may also be invalidated if the creator of the will is pressured into making it benefit someone due to undue influence.

Undue influence prevents a person from making a choice because their freedom to do so has been eliminated. For example, consider a person who depends upon the daily support of their child to get by. Imagine further that the child demanded that the person rewrite their will to make the child their sole beneficiary or the child would stop supporting the person. The person could not live without the daily involvement of their child. Therefore, due to the undue influence that the child's mandate exacted, the person may be forced to rewrite their will even if they truly did not want to.

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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