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Why Does Someone Need a Conservatorship Attorney?

Rachael Phillips
August 21, 2014

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

Sarah Savasky
August 7, 2014

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

  1. The state gets to decide who will be the executor of your estate.
  2. If you have minor children, the state gets to decide who will become their guardians and manage their estate.
  3. Your estate will pay the government to make these decisions for you.

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 Does A Trustee Do?

Rachael Phillips
July 31, 2014

A trustee manages the assets that are held in a trust.  When an individual or married couple places their assets in a revocable living trust, they often name themselves the trustee or co-trustees.  In that case, they are able to continue managing their assets in basically the same way that they did before they put them into the trust.  They can still use their bank accounts to pay their bills and make purchases just like they did before.  They can maintain their home or make renovations to it if they wish.  They can invest their assets and manage those investments however they choose.  When you are the trustee of your own trust, not much really changes about the way that you deal with your assets.

 

When acting as trustee of someone else’s trust, a trustee manages trust assets according to the terms of the trust.  If the trust terms state that the trust is to be used for an individual or group of individuals, then it is the trustee’s job to invest and manage the trust assets prudently and to pay the expenses of the beneficiaries according to the trust terms.  The trustee may be required to account to the beneficiaries, unless this requirement is waived.  There are a number of fiduciary duties that a trustee assumes when taking on the role of trustee.  Consulting an attorney familiar with trust administration is a necessary step to ensure each trustee is aware of his or her fiduciary duties.  There are very few blanket statements that can be made about all trusts, since the duties of trustees and rights of beneficiaries vary according to the specific trust document and its terms.

What is Probate and Why is Everyone Trying to Avoid It?

Sarah Savasky
July 22, 2014

Probate is a word that gets thrown around a lot (mostly by attorneys) but many people are unsure of what it means or why it’s bad. I’ll try to make it interesting, but that’s not going to be easy, so I’ll try to at least make it short.

Probate is the name given to the court process of validating an individual’s will and overseeing the transfer of their assets to their beneficiaries at death.  The process typically takes between six months and two years. Probate attorneys and executors fees are statutory, meaning they are entitled to those fees. If both the attorney and the executor receive the maximum fee those numbers would double. The fees can also go higher if the estate is complicated.

4% on the first $15,000
3% on the next $ 85,000
2% on the next $900,000
1% on the next $9 million
0.5% on the next 15 million

 

When an individual dies and leaves an estate valued at $150,000 or greater, and those assets are not owned by a trust or in an account with named beneficiaries, the estate must go through the probate process. This is one of the benefits of having a trust.

A trust avoids probate if it is properly funded.

A trust is typically more expense than a will to create, but you can see how much money is saved at the individual’s death. That money is going to the family instead of the attorney.

So, that’s what probate is and that’s why everyone is trying to avoid it!

Aging Gracefully (asking for help as we age)

Ann Robbeloth
June 30, 2014

Our estate plans do so much more than handle inheritance these days.  The wonders of modern medicine cure or safely monitor our illnesses, and we often live many decades beyond our own expectations. An estate plan allows us to delegate tasks for a very specific purpose, or over long periods of time.

Together, a trust, power of attorney and health directive allow us to turn to our support system when we need help. A financial durable power of attorney can be used by a spouse, relative or friend, to pay bills, transfer money, file an extension on a tax return that is due, and generally keep our financial lives from disaster when we’re busy recovering from a car accident or receiving a course of treatment for a few months. A trust can be used to manage real estate and investments in the same way.

In my work, I see so many happy people late in life. They often tell me that they’ve lived longer than they ever imagined. The happiest people are those who know the strengths and weaknesses of their social network, and plan accordingly. They feel entitled to give responsibilities to others, knowing that they have contributed in many complex and wonderful ways to the lives of those to whom they turn when sick or in need of support.

You Can’t Take it With You

Sarah Savasky
June 26, 2014

We all understand that “we can’t take it with us” but determining the best way to leave our things behind can be confusing.

Both a will and a trust allow you to choose who receives your assets after you die. A will also allows you to nominate a guardian for your minor children. For most of us, the main benefit of a revocable living trust is that it avoids the expensive and time consuming process called probate (I’ll talk more about probate in my next post). For the very wealthy a trust can also avoid or minimize estate taxes. A trust also allows you to plan for your incapacity and to provide for a child with special needs after you are gone. A will can be used as a stand alone document without a trust. However, a trust is used in combination with a will. In this situation the will is sometimes referred to as a pour over will and it serves as a back up plan in the event that some or all of your assets have not been placed in your trust.

If your estate is small (under $150,000) you might not benefit form a trust, because small estates are exempt from probate, but money isn’t the only consideration that’s why it’s so important to consult with an estate planning attorney to determine which type of plan is best for you.

The only thing you take with you when you’re gone is what you leave behind” –John Allston

What is a Conservatorship?

Rachael Phillips
June 18, 2014

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

Sarah Savasky
June 11, 2014

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.

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