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Fullerton Estate Planning Law Blog

What are the best options for avoiding probate?

As you create or review your estate plan, it's natural to have questions about probate. More specifically, you may turn your attention to the steps you can take to help your estate avoid the probate process.

Without probate, it's easier to transfer your assets to your beneficiaries in a timely and efficient manner.

Undue influence and a position of trust

Have you heard of the term "undue influence" in estate planning? It essentially means that a person who is crafting an estate plan does so in a way that benefits another person because of that person's influence on them.

For instance, say a man has $500,000 to leave to his two children. He plans to leave them $250,000 each. Then he moves into an assisted living center. When he passes away, the children find out that he left $400,000 to his main caregiver at the center, while they now get just $50,000 each. They may argue that the caregiver exercised undue influence to convince the elderly man to change his will.

Passing assets through a living trust helps save time

One reason to use a living trust, rather than a will, is simply that it can save your heirs a lot of time after you pass away.

With a will, the legal process plays out after your passing. The court supervises it to make sure that your wishes are followed. You could leave your home to your kids, for instance, and divide your financial assets.

Do you need to set up a will reading?

As you do your estate planning, you draft a will that leaves your assets to your heirs. Most of the money gets split up evenly, but you do set aside specific sentimental assets for certain individuals. You know how important it is for them to know exactly what you wanted them to have.

To inform them, do you also need to set up a will reading? Does the estate executor need to gather everyone in the same location and tell them what the will says so that there is no dispute?

Disinheriting an heir: What you should know

Human relationships can be endlessly complicated -- especially among families. As unpleasant as it may be, you may have some very good reasons to disinherit a potential heir.

But, can you do it? And, if so, how? Here are a few things you need to know about disinheriting someone:

What's the bare minimum for a legally valid will in California?

You could shop around online and find a cookie-cutter will template. However, that is a very big risk. Many estate planners have made significant mistakes when creating a "do-it-yourself" will or trust document. There are just too many things that can go wrong, and too many headaches and costly expenses that your family will have to endure if you make a mistake. It's worthwhile to rely on the experience of an estate planning attorney to ensure that you draft a sound and valid will.

First and foremost, an attorney will ensure that you'll achieve the bare minimum for your will to be valid in the state of California:

  1. You have signed it.
  2. You're 18 years of age or older.
  3. You're of sound mind and you fully understand what the document means for you and your estate.
  4. At least two witnesses were present at the time that you signed the will or saw you acknowledge that you signed the will.
  5. The will is not an "oral will." It was written, preferably typed.

Long-term care planning: Make it part of your estate plan

For many people, estate planning is all about decisions related to their assets. For example, they focus most of their energy on who will receive their assets upon their death.

Long-term care planning is often put on the backburner, as many people don't want to consider the fact that there may come a time when they're unable to care for themselves.

How are living trusts different than other trusts?

The term "living" in a living trust means that the trust is created while the grantor -- or trust creator -- is alive. In the case of many living trusts, the grantor can change or alter the trust and remain in control of the assets within the trust while he or she is still alive. The grantor can do this by making him or herself the trustee.

When the grantor retains control of a trust like this, it's called a "revocable living trust." In other words, the grantor can change the trust beneficiaries and even dismantle the trust if desired. Due to the fact that the trust creator will still be able to control the trust while alive, it means that the assets will still be a part of the estate -- and in some cases, the money could be taxed after death as a part of estate taxes (when the estate is large enough).

How can I use a trust to bypass probate proceedings for my heirs?

It's understandable that you would want to prevent your heirs from needing to go through probate. Probate proceedings can be expensive and lengthy. They're also public, so anyone can find out information about you and your family.However, with the strategic use of a trust, you can avoid the need for costly and time-consuming probate proceedings. A trust -- for example, a living trust -- offers both confidentiality and the ability to give your assets directly to heirs. You can also structure and plan the way your assets are given -- either over time at specific intervals or immediately upon your death.

In the case of a living trust, when the grantor creates the trust, they will designate a trusted person to serve as trustee. The trustee will be in charge of managing the trust based on the instructions contained in the document. A banker, attorney or investment advisor might serve as the trustee in some cases. It might also be a friend or member of the family. The trustee has a duty to manage the trust for the benefit of the named beneficiaries.

Don't forget about Fido in your will

If you're a person who loves having pets, the last thing you'd want to see is your pet being mistreated or left alone after your death. Whether you have horses, dogs, cats, fish or other animals, it's a good idea to include them in your will.

If you die before your pets or animals, then you may find that people aren't as willing to take them on as you'd think. Animals can be expensive and time-consuming, so people might say they're happy to take on their care but end up giving up the animals later.

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