Archive for the ‘Probate’ Category
More About Guardians
Recently Sarah wrote about choosing a guardian for minor children in the unlikely event that both parents have died, but what happens when one or both parents are alive but are not able to care for their child? This can happen when the parents have a serious illness or injury, or if the court determines that it is detrimental for the child to remain in their care. It is also possible for a non parent to become a guardian if the parents have left the child in their care for a long period of time. In this case, the child may have bonded with the person and come to view that person as a mother or father, making it in the child’s best interest to remain in their care.
All guardians must be approved by the court (even when nominated by the parent). A court must approve the guardianship in order for the person nominated to obtain legal authority to do things, such as, talk to the child’s doctor or enroll them in school. The court process ensures that the named guardian is qualified to safely and effectively care for the minor child.
Sometimes, there may be alternatives to a formal guardianship that would solve the problems presented in a particular case, and guardianship may not be necessary or appropriate. An attorney who specializes in guardianships can help determine the best way to handle each individual situation.
Estate Planning: A Road Map
Imagine that you are about to take a road trip to somewhere you have never been before. You may have a general idea of where you going but you don’t have a map. Now imagine that you have to drive the car while you are grieving, overwhelmed or confused. You may have family members along for the ride who are also dealing with strong emotions and they all want to go in different directions. It sounds like a recipe for disaster.
Now think about how much easier that road trip would be if you had been given a map. Creating an estate plan is like leaving a road map for your loved ones. They will still have to make a difficult journey, but think of how much smoother it will be if they have directions.
DIY Estate Planning
I’m all for a good do it yourself project. I recently refinished a coffee table and attempted to make a slipcover for the chair my cat destroyed. But I wouldn’t recommend doing your estate plan yourself.
I might be a tad biased considering I am an estate planning attorney, but the chances of making a mistake are high and the consequences of those mistakes could be huge. Most DIY estate planning resources are one-size-fits-all, and you may recall me saying, estate plans are not.
When it comes to estate planning, details matter. If you make a drafting error or if your will is not witnessed properly, your documents could be invalid. If you have drafted a trust but the trust has not been funded, it will not work the way it was designed to work.
Add to that, common complications associated with a second marriage or a child with special needs, and the possibilities for error increase. The decisions you make in an estate plan can have unforeseen and unintended consequences. An experienced estate planning attorney can help avoid those pitfalls and achieve your goals in thoughtful manner.
Trustee’s Duty to Inform
The California Probate Code imposes on a trustee the duty to “keep the beneficiaries of the trust reasonably informed of the trust and its administration.” While the Probate Code specifically requires a trustee to provide certain types of information to the beneficiaries at certain times, it does not include any definition of the phrase “reasonably informed of the trust and its administration.”
In many cases, the more information a trustee provides the better. A trustee is likely to encounter problems with beneficiaries who feel like they are being kept in the dark. The best way to avoid that is to be as open and forthcoming with information as possible. Even where the Probate Code does not require it, the beneficiaries will likely appreciate being informed of any significant actions the trustee plans to take, such as selling or distributing any trust property of significant monetary or sentimental value. On the other hand, it may be more efficient for a trustee to inform the beneficiaries of more routine actions through periodic updates, rather than individual notifications of each and every action taken. The important thing for a trustee to remember is that the beneficiaries have a right to request “information”; therefore, answering questions from beneficiaries is an important trustee responsibility under current California law.
Why Does Someone Need a Conservatorship Attorney?
Conservatorships involve a number of steps that can be difficult to manage without experience. There are many different forms that must be completed and filed with the Court to request appointment of a conservator, as well as deadlines that must be met and procedural steps to follow. There are state laws that apply in conservatorship proceedings, contained in the California Probate Code, and there are also local rules which vary from county to county. Many local rules dictate the procedural steps and timeline that must be followed. A conservatorship attorney will be able to help you navigate the process and people involved, such as the Court Investigations Unit, Probate Examiner and ultimately the Superior Court Judge who hears your case. It is his or her job to make sure that you do everything in the correct manner to achieve the best possible outcome.
If you are seeking to have yourself appointed as the conservator, the conservatorship attorney will also help you understand the responsibilities that you will have as a conservator and the rules that you will be required to follow once appointed. Conservators have ongoing requirements to provide information to the Court and to certain individuals. A conservatorship attorney is in the best position to help you keep track of and fulfill these requirements.
The conservatorship attorney can also help you address any concerns of family members, friends or others who might disagree with your decisions or actions. Sometimes the role of conservator can feel like it has a public relations aspect. When communication is planned thoughtfully with the help of your attorney, it can go a long way to keeping all family members, case coordinators, Court Investigators and other interested parties happy with your efforts.
Where There’s a Will, There’s a Way
It’s true that not everyone will benefit from a trust as part of their estate plan, but most people will benefit from a will. If you have a will you have a way to make very important decisions that could have a huge impact on your family after you’re gone.
Without a will you are letting the government make those decisions for you. Here are some of the decisions the state gets to make if you die without a will (also known as dying intestate).
The state gets to decide who your property goes to. mystatewill.com
Most of us don’t want to think about our death, so we put off making important decisions, but it’s important to realize that if you don’t decide, the government will do it for you.
What is a Conservatorship?
Conservatorship is a Court-supervised process through which an individual obtains the authority to manage the personal care and/or finances of another individual who lacks capacity to handle those matters for himself or herself. The conservator is appointed by the Court, and is required to periodically account for the use of conservatorship funds. The conservator must also obtain Court authorization before taking certain actions.
General probate conservatorship is commonly used in the cases of individuals who have suffered a head injury or stroke, or who have dementia. In addition to general probate conservatorship, there are two special types of conservatorship: limited conservatorship and LPS conservatorship.
Limited conservatorship works similarly to general probate conservatorship, but is used specifically in the case of an individual with developmental disabilities. The authority of the limited conservator is specifically tailored to minimize the restrictions placed on the limited conservatee, recognizing that the developmentally disabled individual may have greater capacity than an individual who would require a general probate conservatorship.
LPS conservatorship is used specifically in the case of individuals who lack capacity due to mental health issues, to the point of posing a danger to himself or herself, or others. This type of conservatorship can allow the conservator to have the mentally ill conservatee committed to a mental health facility, or to force them to take psychiatric medication.
All types of conservatorship are Court supervised, and the conservator can be a family member or friend of the conservatee, or a private professional fiduciary. In cases where there is no family member able or willing to act as conservator, and insufficient funds to a pay a private professional fiduciary, a county official called the Public Guardian can be appointed.
When it Comes to Estate Plans, Size Doesn’t Matter
There is a common misconception that only wealthy people need estate plans. The reality is that most people need an estate plan, but not everyone needs the same estate plan or benefits from one in the same way.
Although an estate plan typically includes four documents; a Revocable Living Trust, a Will, A Durable Power of Attorney for Management of Property and Personal Affairs (DPA) and an Advance Health Care Directive (AHCD), estate plans are as unique as the people who create them. They are definitely not one size fits all.
For a family with modest assets a good estate plan is especially important because it can help them pass more of their assets to their loved ones by avoiding the expense and time associated with probate proceedings.
The most important part of an estate plan is not the estate, it’s the plan.