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Fullerton Estate Planning Law Blog

Legal troubles continue to plague James Brown’s estate

Estate planning offers many advantages and protections to those who use legal tools properly and understand their limitations. However, many estate plans involve terms that are not possible to enforce, or create tensions between potential beneficiaries. Such seems to be the case with the estate plan of late soul music legend James Brown. By now, it has been over a decade since Brown passed away, but his estate remains unresolved.

Depending on which party you speak to, you may get a different story regarding who is at fault in the matter, and multiple parties contend that they deserve some portion of the Brown estate. One version of the conflict contends that several of Brown's potential heirs were not named beneficiaries in the will, cutting them out of any portion of its assets.

Review your estate plan to ensure it reflects new tax laws

With the passage of the new lax laws, many estate plans require revisiting and possible revising. For many years, estate planning professionals navigated complex tax avoidance systems to help clients keep more of their own estate to pass on to their beneficiaries.

Now, under the new tax law, couples may exempt a frankly staggering sum of money from estate taxation, potentially complicating or invalidating many estate plans. According to the new law, a couple may exempt up to $22 million from federal estate tax.

You can still fund your trust after you die

Establishing a living trust is an important step for many individuals assembling their estate plan. However, it is not always clear how and when to fund a living trust. The flexibility of a living trust can often prove overwhelming to those not fully familiar with how to use such a tool. It is important to make sure that you have all the guidance you need to fully take advantage of all of its benefits.

You have a number of options for funding a living trust, and many people find that the easiest way to accomplish this goal is through the use of a pour-over will. When using a pour-over will, the assets that you do not specifically gift to particular individuals or parties get placed into the trust upon your death. In this way, the unassigned assets "pour over" into the trust upon your death.

Conditions for disclaiming a gift from an estate

Estate planning is a complicated matter, and even a well-meaning benefactor may unwittingly cause unforeseeable conflicts or liabilities for their beneficiaries any number of ways. Often, these issues arise because an estate plan is not assembled professionally, is not maintained over time, or because the laws that govern estate planning and gift taxation change.

For many beneficiaries, a gift they receive from an estate stands to cause problems rather than bring blessings. This may be a matter of personal preference or a tax issue, or some other kind of conflict, but the end result is the same, and the beneficiary needs to figure out how to graciously decline a gift that is too heavy to receive.

Do you need a durable financial power of attorney?

As part of creating an effective estate plan and protecting your end-of-life wishes, it is often important to consider appointing someone to carry durable financial power of attorney for you. The person you choose to carry this authority must understand the importance of this position and have the faculties to make sober judgments and dependably represent your interests.

Assigning durable financial power of attorney to an individual is a fairly simple process, essentially allowing a person who accepts this role to access and control your finances. While this certainly comes with its own set of risks, it is important to ensure that there is someone to look after your financial interests in the event that you cannot do so yourself.

What if I can’t avoid probate in California?

When a Californian builds an estate plan, most of the attention usually goes toward protecting assets from unnecessary taxation or other threats, such as creditors. In many cases, it is possible to avoid probate and several expenses with an estate that probate includes. However, this is not always the case, and some California residents have no choice but submit their estate to probate when the time comes.

If you find that your estate cannot avoid probate entirely, then you may have a number of other opportunities to lessen the blow to your estate and your beneficiaries. However, it is unlikely that you can completely avoid every aspect of the process, so it is wise to understand what probate covers and who is responsible for overseeing it.

What is a joint will?

Many people do not realize they may have numerous options when it comes to creating a will, depending on their financial and personal circumstances. One type of will that is commonly overlooked is a joint will, usually created for a married couple. Joint wills are used less frequently now than in previous years, because many of the advantages of a joint will are available elsewhere, often with additional benefits.

If you know someone who uses a joint will, they probably created the will some time ago, before other estate planning tools gained prominence. Joint wills require that all the parties involved agree on the terms of the document, meaning that one party cannot alter the will without the consent of the other party. This remains true even after one party dies or is incapacitated, leaving the surviving party locked into a will he or she cannot alter.

Protecting a spouse with an AB trust

When it comes to creating an estate plan to protect your assets and provide for the ones you love, there are numerous options to consider, including an AB trust, which some choose to help reduce a surviving spouse's tax liability when the first spouse passes away. These trusts use a unique set of rules to provide some distinct advantages and protect families from unfair taxation.

In very general terms, AB trusts allow one spouse to retain use of a certain piece of property while taking out of their personal ownership for tax reasons. When one spouse in a couple with children or other beneficiaries passes away, the surviving spouse does not automatically receive the property of the deceased. Instead, that property passes into the AB trust, where it waits for the other spouse to pass away before distribution to heirs or beneficiaries.

Choosing a health care agent

As you consider your estate planning needs and your emergency and end-of-life care preferences, it is very likely that you may decide to name a health care agent. Such a person acts on your behalf, making medical choices that align with your wishes. Depending on the nature of your wishes, some of those close to you may find it difficult to act as your health care agent, so be sure you choose your health care agent carefully.

The person you choose must truly possess the ability to make tough decisions and follow your wishes, even in the face of potential opposition. This is especially true if you have family members who may disagree and challenge your wishes or place pressure on the health care agent to act in a certain way.

Do you need to create a living will?

Living wills are an important part of many carefully considered estate plans. In broad strokes, a living will establishes the end-of-life wishes of the document's creator in the event that he or she loses the ability to communicate or faces some life-threatening ailment and can no longer make decisions with a clear mind.

Many living wills include appointment of some specific individual who is responsible for advocating on the will creator's behalf. This is often very useful, especially because so many end-of-life decisions are nuanced and require careful consideration protect both an unresponsive or incapacitated individual and that person's loved ones.

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