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Fullerton Estate Planning Law Blog

Community property law and estate planning

Estate planning is a complicated business, but in community property states, it is even more so. Under community property laws, spouses both enjoy one-half ownership of all their marital property, which can greatly complicate matters when it comes time to create an estate plan. If you are married and are beginning to think about how you'd like to pass on your estate, it is very important to consider how this state-specific issue may affect your planning.

Unless you had the foresight to separate certain pieces of property with a prenuptial agreement, most of what you own as a married person is also owned by your spouse. This can create substantial conflicts when it comes to designating who should receive your property when you pass away if you remain married to your spouse until that point.

What is testamentary capacity in will creation?

When a person creates a will, it is very important to establish his or her testamentary capacity for the will to withstand potential legal challenges. Testamentary capacity is a person's legal ability to create a valid will. Some individuals simply do not possess that capacity. For instance, in most cases, a legal minor under the age of 18 cannot legally create his or her own will.

In most cases, testamentary capacity comes under scrutiny when an interested party suspects that the testator created the will under the influence of drugs or coercion or was otherwise mentally compromised. If, for instance, the testator creates the will while he or she is not mentally sound due to the effects of the sickness and accompanying medication, then the testator probably does not have testamentary capacity.

When does a trust dissolve?

When discussing estate planning, it's hard to talk for more than about five minutes without bringing up trusts. In modern estate planning practice, trusts are one of the most commonly used tools to help an individual protect his or her estate and determine how that estate gets distributed when the time comes.

But, for all this talk of trusts and the detailed work one must do to set them up and maintain them, it is not always clear how or when a trust ends. In very general terms, once a trustee distributes all the property within a trust, the trust dissolves. However, it is rarely as simple as handing out property to beneficiaries and closing the books.

Do you need to add a no-contest clause to your last will?

You've spent a lifetime building up the assets and possessions you currently have. It's only natural to want to see them allocated in a manner than reflects your wishes and preferences. For many people, their last will or estate plan is also a way of leaving a lasting legacy. That could mean passing on the family home to someone whom you trust to live there, not to just sell it for money. It could also mean allocating more assets to one heir than others or leaving something for charity.

Unfortunately, it's possible that your family will not agree with your decisions on how to disburse your estate. That can lead to a lot of potential conflict among your family members and heirs after your death. If you have reason to suspect that someone in your family could attempt to contest your last will or challenge your estate, you may want to consider including a no-contest clause in your last will.

Consider this when selecting a health care agent

As you create your estate plan and prepare for the possibility that you could become incapacitated, you may choose to appoint a health care agent to make medical decisions on your behalf. This is an important decision that may greatly impact not only your own health and well-being, but also your estate and potentially the relationships between your loved ones.

A health care agent holds a great deal of responsibility. When and if he or she must step into that role at some point in the future, it is very likely that it will involve making decisions that are emotionally difficult. You must always consider your candidate's decisiveness and assertiveness when determining who your health care agent will be.This person may need to make difficult decisions in the face of severe opposition from your other loved ones. If you have complicated family dynamics, it is also wise to consider how they may affect a candidate's ability to perform his or her duties effectively when the time comes.

Understand the limits of a will

Wills are important documents, and every legal adult should have one. However, wills do not have magical properties, and cannot generally supersede other areas of the law. As you consider your own will or possibly review it for accuracy, be sure to pay special attention to things that you should not include to avoid legal complications later on.

Your will cannot skip right over the probate process. While you may have success avoiding probate with the use of certain kinds of trusts, simply naming individuals to receive your property in your will does not automatically circumvent probate when you die. Similarly, your will does not allow you to avoid estate taxes. It is important to account for these taxes as you create your will and plan to disperse your property.

Is it time to remove your trustee?

Choosing the person you want to serve as the trustee of your trust is an important decision that may impact your estate significantly, for better or for worse. In some cases, the relationship between you and the trustee may deteriorate, and you may realize it is time to consider firing him or her and looking for a suitable replacement. If you find yourself thinking about this course of action, it is always wise to take a deep breath and consider some valid reasons you may have for removing a trustee before it is too late.

In general, trustee conflicts come down to personal conflicts and financial concerns. If your relationship with the trustee sours on a personal level, then it is wise to consider appointing someone to the position with whom you do not have personal complications. The same goes when your trustee develops conflicts with other parties that the trust affects, such as your beneficiaries. If you cannot trust your trustee personally, it is difficult to trust them in financial matters.

Can I amend my trust?

Trusts offer protection from many threats to an estate, but this security often comes at the expense of flexibility and control of one's assets. In general, the greater control one retains over the assets he or she places in a trust, the fewer protections those assets enjoy. At some point, a trust creator may wish to change the terms of the trust, but this is not always possible.

Depending on the nature of the trust, you may not actually have the ability to amend your trust. Certain kinds of trusts are irrevocable, meaning it is not possible to amend them once you establish them. However, in most instances, it is possible to alter a trust if you follow specific procedures.

How do you protect your position as executor of an estate?

Handling an estate on behalf of a deceased loved one is often a difficult task. First, you have to review and make sense of the last will and estate plan. Then, you have to submit all necessary documentation to relevant parties, such as the bank and creditors of the deceased. Finally, you have to pay off debts, sell assets and allocate different possessions to different heirs per the instructions in the last will. It can be a daunting and thankless process.

In some cases, the administration of an estate can lead to tensions and discord in a family or among a pool of heirs. People you have been close with could attack your performance or even challenge your position as executor if they are unhappy with the will or how you handle the estate. Thankfully, there are certain things you can do to protect your role as executor and cut down on tensions among the beneficiaries of the estate.

'Glee' actor's ex-girlfriend loses bid to administer his estate

Some of our readers may already be familiar with the sad saga of actor Mark Salling. The actor gained prominence on the television show "Glee." However, in Dec. 2015, he made headlines for another reason.

Salling was charged with child pornography possession. He pleaded guilty to the charges and was scheduled to be sentenced to anywhere from four to seven years behind bars when he hanged himself on Jan. 30.

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