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Wishing You A Happiest of Holidays
Lauren Rios • November 4, 2024
The Holiday Season is Here
Happy holidays from all of us at the Law Office of Lauren Rios! Can you believe that it's already the season for giving, for lights and trees, for food and gathering of families? As much as the hustle and bustle keeps us on our toes, it's the most wonderful time of the year.
The calendar can easily get filled with parties, holiday programs, family get-togethers and more. Make the most of the holiday by soaking in all that makes this time of the year so special. Time with friends and family, the warmth and joy of children's laughter, the pure twinkle of holiday lights... these simple things are what make the holiday merry and bright.
We wish you the happiest of holidays. May you be captivated by the magic of the season and filled with hope in the new year!
Caregivers, You're Not Planning Just For Yourself
As a caregiver, you spend much of your time, money, and energy taking care of the needs of others. Those who have taken on the role of caregivers for ill or disabled spouses, aging parents, children, or other loved ones with special needs are typically selfless and giving individuals who may not stop to consider their own needs.
Your job is invaluable, but it may exact a heavy toll if you do not seek out the help of others. We want you to know that you are not alone: There are resources available that can make your job as a caregiver easier. It is important to seek out the emotional support of others, either family members or other caregivers, who can understand and empathize with both the rewards and the physical, emotional, and financial burdens associated with caregiving. There are also programs that provide respite care or adult daycare that can allow you to take a much-needed and well-deserved break. State or federal aid and tax credits or deductions may be available to help ease your financial burden as well.
Care for Yourself and Your Loved Ones by Creating an Estate Plan
As your estate planning attorneys, we are another resource you can look to for support. If you are caring for aging parents or other family members with disabilities, it is essential to ensure that you not only address your own emotional and financial health, but that you have an estate plan in place that addresses both your needs and the needs of those you care for. We can provide you with the peace of mind that comes from knowing not only that a plan is in place for your future, but also the future of the loved one under your care. Knowing that your loved one will continue to receive loving care, even if something happens to prevent you from continuing to acting in the role of caregiver, will help ease any concerns you have about your loved one's care.
Name a Guardian
If you are a parent who is acting as a caregiver for a special needs child, you should name a guardian—and more than one alternative—in your will to serve in the role of physical caregiver if you pass away or are no longer able to care for your child. Otherwise, the decision about who will act as a guardian will be left to the court, which may not reflect your wishes.
If the care recipient is an adult, you must ask a court to name you as your loved one's guardian and/or conservator to be able to make decisions about their health care, living arrangements, and finances. If you are providing day-to-day care, you may want another trusted person who can handle your care recipient's financial matters to act as conservator.
What happens if you are no longer able to act in the role of guardian for your adult care recipient? State law varies regarding the designation or appointment of a successor guardian for an adult. Some states allow a standby guardian to be appointed at the same time the first caregiver is appointed or to be designated in the initial guardian's will or in another written document, as long as it is properly witnessed. If anything happens to you, the standby guardian can immediately step in to begin providing care. Some states allow a standby guardian to serve for a brief time but require approval by a court before being appointed as the permanent guardian. Still, other states have laws enabling the court to consider an individual you nominate in your will as a successor guardian when the court is making the decision about who is the best person to take on that role. We can help you determine the best course available for you.
Consider a Special Needs Trust
A will alone is unlikely to adequately address the needs of your care recipient. If you leave money outright to the person for whom you are caring or to another caregiver, it could be spent in a way that is contrary to your wishes, and will now be vulnerable to creditors of the recipient. In addition, it could make your loved one ineligible for government benefits or aid.
A special needs trust is an estate planning tool that may be very beneficial for your care recipient. A special needs trust can help preserve the beneficiary's eligibility for government benefits, name a well-qualified trustee to manage the trust funds, designate a care manager, and preserve your loved one's quality of life. Along with your financial advisor, we can help determine which of your resources can be used to fund the special needs trust or if a life insurance policy may be needed to ensure that there are sufficient funds available to provide for the beneficiary's care. We can help you create a trust that sets aside, protects, effectively manages, and distributes assets for your care recipient's lifetime, and equally important, designates a trusted individual to act as an advocate for your loved one if you cannot.
We Are Here for You
It is important not only to recognize your own emotional needs and develop the skills needed to deal with the stresses of caregiving, but also to reach out for help when you need it. As a caregiver, it is crucial to ensure not only that your own future is secure, but to also create plans that provide for your family and care recipient if something should happen to you. Take the time to create an estate plan, or if you have a plan in place, to reevaluate it at regular intervals to address changing life circumstances and laws. Please call us today to set up a meeting. We can help put your mind at ease by designing a plan that provides security for you, your family, and your care recipient.
When a loved one dies, their estate will need to go through an administration process before their assets can be distributed to their beneficiaries or heirs. If your loved one died with a living trust, their trust estate will go through what we call a "trust administration." If your loved one died with just a Will or no Will, then depending on the value of their assets, their estate may need to go through a formal probate proceeding before their assets can be distributed. While every probate is different, every personal representative or executor can expect the following to occur in a probate proceeding: Gather information about the decedent and their assets; Hire an experienced California probate attorney to assist with preparing and filing the Petition for Probate; Provide Notice of Petition to Administer Estate to all Will beneficiaries or decedent's heirs (if there is no Will); Publish Notice in the local newspaper; Attend the hearing on the Petition for Probate and await Letters of Administration or Letters Testamentary that grants the Administrator or Executor the authority to manage the decedent's estate; Once Letters are obtained, provide Notice to Creditors to start the clock on the time to make any claims against the estate; Marshall the decedent's assets and prepare an Inventory and Appraisal for the appointed probate referee; Pay any debts of the estate; Sell estate assets, if necessary; Obtain approval from the Court to distribute assets to the decedent's beneficiaries or heirs. FREQUENTLY ASKED QUESTIONS WHAT RULES AND LAWS GOVERN A PROBATE PROCEEDING? A probate proceeding will be governed by the laws set forth within California Probate Code Division 7. Administration of Estates of Decedents ( PC 7000 - 12591 ). Effective January 1, 2000, the Judicial Council of California adopted “ TITLE SEVEN. Probate Rules ” to implement the purpose of the Probate Code. The Probate Rules apply to every action and proceeding to which the Probate Code applies. Additionally, local courts also have authority to provide local rules for practice and procedure in probate matters. Oftentimes, local courts will have their own local court forms that must be filed in the probate proceeding. Check your superior court website for local rules. For all probates, it is crucial for the personal representative and his or her attorney to follow not only the California Probate Code, but also the California Rules of Court and local rules. WHICH CALIFORNIA COUNTY SHOULD I FILE THE PROBATE PETITION TO GET STARTED? In order to file the Probate Petition, the proposed representative or nominated executor must determine which Court has jurisdiction over the matter. “Jurisdiction” means the power of a court to hear and determine proceedings. This means a court's authority to try the case before it. Under Probate Code 7050, the Probate Code grants the probate department within each Superior Court of California exclusive subject matter jurisdiction of proceedings concerning the administration of decedents' estates. As far as venue, the Probate Petition must be filed in the California County where the decedent either (1) was domiciled at the time of his or her death, or (2) left property in California at the time of death. A person's domicile is the one location with which, for legal purposes, the person is considered to have the most settled and permanent connection, the place where the person intends to remain and to which, whenever he or she is absent, the person has the intention of returning. A prime example of (2) is when someone owns real property in California but moves to another state to live out their final days. If that decedent left real property, for example, in San Mateo County, but was domiciled in Florida, the proposed personal representative may be filing two probate petitions: one in Florida where the decedent was domiciled and one in California where the decedent left real property. WHAT FORMS OR PLEADINGS DO I NEED TO USE TO FILE THE PETITION FOR PROBATE? The Judicial Council of California has adopted mandatory forms to be used in the probate proceedings. Generally, to file the Petition for Probate, the proposed personal representative must complete, sign and submit the following forms: DE-111 Petition for Probate ( here ) DE-121 Notice of Petition to Administer Estate ( here ) DE-140 Order for Probate ( here ) DE-147 Duties and Liabilities of Personal Representative ( here ) DE-147(S) Confidential Supplement to Duties and Liabilities of Personal Representative ( here ) HELPFUL TIP : Check your local court rules for any local forms that must be filed simultaneously with the Petition. Some counties will deny the Petition for Probate if not all forms (including local forms) are timely filed before the initial hearing on the petition. Hiring an experienced probate attorney will reduce the risk your Petition will be rejected or denied. I FILED THE PETITION FOR PROBATE - NOW WHAT? So, you and your attorney filed all the necessary state and local forms to initiate the Probate. Great job! Remember, you are not the personal representative or Executor at this point. You need to wait for the hearing to actually be appointed by the Probate Judge. So, when does that happen? Well, upon filing the forms, the county clerk would have assigned the date and time of the initial hearing on DE-121 Notice of Petition to Administer Estate. You, as Petitioner, have a duty to notice all interested parties of the hearing so that they have an opportunity to be heard at the hearing (including contesting your appointment). So how do you notice interested parties? You or your attorney must timely serve the completed DE-121 Notice of Petition to Administer Estate (which will have the date and time of the initial hearing) to all beneficiaries listed within the Will and/or the decedent's heirs (if no Will). You may also include a copy of the Petition for Probate in this mailer (but it is not required). Once you send out the notice to each beneficiary or heir, you must file a Proof of Service with the Court. Check your local county rules for the appropriate Proof of Service form and procedure. If you suspect a heir might contest your appointment, should you fail to give them notice? ABSOLUTELY NOT!!! Your petition for appointment will be denied if you fail to give notice to all interested parties. HELPFUL TIP : You, as the proposed personal representative or nominated Executor CANNOT take any action on behalf of the estate, including but not limited to, selling or distributing estate assets, until AFTER the Judge confirms your appointment AND Letters of Testamentary (if there is a Will) or Letters of Administration (if no Will) are issued to you. Even then, your ability to take actions on behalf of the estate are limited. You need to speak with an experienced probate attorney to confirm what actions you may actually take. I'VE SEEN "DEATH NOTICES" IN MY LOCAL NEWSPAPER. DO I NEED TO DO THAT? Yes, before the initial hearing , the Notice of Petition to Administer Estate "shall be published in a newspaper of general circulation in the city where the decedent resided at the time of death, or where the decedent's property is located if the court has jurisdiction under [Probate Code] Section 7052. If there is no such newspaper, or if the decedent did not reside in a city, or if the property is not located in a city, then notice shall be published in a newspaper of general circulation in the county which is circulated within the area of the county in which the decedent resided or the property is located." PC 8121. This publication requirement is an important step because it puts creditors or other interested parties on notice of the probate so that they can participate if needed. HELPFUL TIP : Probate Code section 8121(a) sets out the minimum number of publications and timeline between each publication. It is important to work with an attorney who is familiar with this process so you don't risk your petition being denied for failure to meet the publication requirements. WHAT HAPPENS AT THE INITIAL HEARING? So, it's the day of the initial hearing. You and/or your attorney will need to attend the hearing in person (or virtually if allowed by the Court). There will be at least a dozen or more matters on calendar. So, plan to wait a little while until your matter is called by the Judge. You'll know your matter is called when the Judge reads, "Estate of [name of decedent]." At this point, you will walk to the table in front of the public seating area (if attending in person) and introduce yourself (e.g., Good Morning, your Honor, Jane Smith, Petitioner." The Judge will thank you for your appearance and indicate if there are any defects in your petition. If you've worked with an experienced probate attorney, there shouldn't be any defects that couldn't be resolved prior to the hearing date. If there are defects in the Petition, the Judge will continue your hearing to a future date to give you time to "cure" the defects. Even if there aren't any defects, the Judge will ask if anyone is present to object to your formal appointment. If not, the Judge will grant the Petition, sign the Order for Probate and indicate that you should file the Letters of Administration (or Letters Testamentary) with the clerk's office. Congratulations - you've made it over the first hurdle! HELPFUL TIP : Courtroom Decorum - the dignity of the Court is to be respected and maintained at all times. If you attend the hearing, always be prompt (i.e., arrive at least 15 minutes before the calendar begins), wear appropriate clothes (think "important business meeting attire"), turn off your cellphone (not just silenced), stand when the Judge is called out from his/her chambers, do not talk when court is in session, be courteous to the Judge and all courtroom staff when your matter is called ("yes, Your Honor" or "no, your Honor"). HOW DO I PROVIDE NOTICE TO CREDITORS? Once "Letters" have been issued, you have a statutory obligation to notice known or reasonably ascertainable creditors of the probate proceeding. Why? Well, they need a chance to make a claim against the estate, if any. Typical creditors will be credit card companies, home mortgage lenders, utility companies, or funeral homes (i.e., service providers that didn't get paid before the decedent died or shortly thereafter), or those persons who may have a potential claim against the decedent on account of something that happened during the decedent's lifetime. To provide notice, complete DE-157 and mail or personally serve that form, together with a copy of a blank Creditor's Claim form , to each known or reasonably ascertainable creditor. Creditors have four months after Letters are issued or 60 days the notice was mailed or personally delivered to them, whichever is later, to file a claim with the court clerk AND mail or deliver a copy to the personal representative of the estate. If they don't, their claim is deemed "untimely," and they will need to petition the court for permission to file a late claim. HELPFUL TIP : You are not required to make a search for possible creditors. You are required only to notify creditors who are actually known either because information (written or verbal) comes to your attention during administration or the creditor demands payment during administration. However, you cannot ignore information that may shed light on possible creditors (e.g., ignoring a folder marked "unpaid bills"). WHAT IS MY DUTY WITH REGARDS TO THE INVENTORY AND APPRAISAL? One of the principal duties of the personal representative is to take possession or control of all of the decedent's real and personal property that is to be administered in the estate. In doing so, the personal representative will need to obtain an estate EIN (or, tax ID) to collect assets. The personal representative has no authority to collect property that is not part of the estate, such as joint tenancy property, insurance proceeds that are not payable to the estate, and custodial Individual Retirement Accounts not payable to the estate and not funded by contributions from the decedent. The personal representative is also responsible for completing and submitting the Inventory and Appraisal to the probate referee (i.e., licensed appraiser assigned by the Judge at the initial hearing) within four months after Letters are issued. The inventory and appraisal serves as a record and list of the decedent's property that is to be administered and distributed. It also: (1) informs the heirs and devisees of the nature and worth of assets in the estate; (2) advises the estate's creditors of the amount and availability of estate assets; (3) assists the personal representative in identifying and valuing assets subject to estate taxes; and (4) notifies the Court of the extent and value of the assets to determine bond amount, if necessary, and the amount of statutory compensation due to the personal representative and attorneys for their ordinary services. HELPFUL TIP : The inventory and appraisal is a very detailed document that should be completed with the assistance of an experienced probate attorney. WHEN SHOULD I PAY DEBTS OF THE ESTATE? Debts of the estate may be paid in several methods during the course of administration. The personal representative may pay, but cannot be required to pay, debts of the decedent without court authorization as they arise or become known. Some expenses of administration are commonly paid as they accrue, such as newspaper publication, the bond premium, filing fees, and probate referee's fees. However, claims against the estate that are debts of the decedent must follow the claims process (remember the Creditor Claim process discussed above) and even after the claims are allowed by the personal representative and approved by the court, they are not required to be paid until the court explicitly orders payment, generally at the first account made more than four months after letters were first issued to a general personal representative. The personal representative generally pays the estate debts from estate assets in his or her possession. If there is insufficient cash from the estate, estate assets can be sold to satisfy debts. DO I HAVE THE AUTHORITY TO SELL ESTATE ASSETS? A personal representative acting with full authority under the Independent Administration of Estates Act (IAEA) has the authority to sell estate real or personal property under independent administration procedures. The representative acting with limited authority has the authority to sell personal, but not real, property of the estate under independent administration procedures. Even those personal representatives with full authority under the IAEA need to provide interested parties with a Notice of Proposed Action (NOPA) if they want to sell real property, for example. The interested parties have a certain period of time to object or consent to the proposed action. Alternatively, interested parties may waive notice of proposed action in which case the personal representative may take action without needing to provide parties with the notice. HELPFUL TIP : Bear in mind that a personal representative with full authority under the IAEA may always opt into a Court-supervised process, which may be desirable with contentious beneficiaries. HOW DO I CLOSE THE PROBATE AND DISTRIBUTE ESTATE ASSETS? The personal representative may file a final account and petition the Court for distribution once the estate is in a condition to be closed. How do you know if the estate is in a condition to be closed? Well, what the Court wants to see in this petition is All notices have been sent according to the Probate Code, Debts and taxes have been paid, The court is provided a final accounting of estate assets (although this can be waived by interested parties), There is a plan for distribution to the beneficiaries or heirs, and The amount or statutory compensation for the personal representative and his or her attorney. California law allows both a Personal Representative and the attorney for the Personal Representative to take a fee (referred to as a statutory fee) for ordinary services, calculated as a percentage of the appraised value of the estate property. The formula for calculating the fee is as follows: 4% of the first one hundred thousand dollars ($100,000), plus 3% of the next one hundred thousand dollars ($100,000), plus 2% of the next eight hundred thousand dollars ($800,000), plus 1% of the next nine million dollars ($9,000,000), plus ½ of 1% of the next fifteen million dollars ($15,000,000). For all amounts above twenty-five million dollars ($25,000,000), a reasonable amount to be determined by the court. Mortgages or other debt obligations are not considered in computing the fee base. HELPFUL TIP : In most instances, a hearing will be set on the petition for distribution. However, in some counties like San Mateo County, the personal representative may submit the petition for distribution on an ex parte basis, meaning that they don't need to wait for a hearing set months out. The Judge will review the final petition and make a ruling within days, if not the same day as filing. We hope you found these probate FAQs helpful. The last thing you should know is that you don't have to do this alone. Lauren Rios is an experienced probate attorney who can help you navigate the probate process. Disclaimer: The above is provided for educational and informational purposes only, and should not be construed as legal advice or as an offer to perform legal services on any subject matter. The content of this web site contains general information and may not reflect current legal developments or information. No attorney-client relationship is established by viewing the information posted on this website.
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Estate planning can feel overwhelming, especially for those who have never created a plan or who haven't updated theirs in the recommended timeframe of three to five years. However, the good news is that with the help of a specialized lawyer, the process can be smoother and more efficient than many people anticipate. At the Law Office of Lauren Rios, we work closely with clients to ensure they have a comprehensive and up-to-date estate plan. Below is a general checklist we share with our clients to help them prepare for creating or updating their estate plan. 1. Beneficiary Designations It’s important to designate a beneficiary for all non-probate assets, including 401(k)s, IRAs, life insurance policies, pensions, and bank accounts. For those who already have an estate plan, ensure that the person currently named is still your preferred beneficiary. 2. Financial Power of Attorney Choose someone you trust to make financial decisions on your behalf in the event that you are unable to do so. This individual should be responsible and capable of handling your financial matters. 3. Advanced Healthcare Directive To ensure your medical preferences are followed, use a living will. You’ll also want to name a reliable person—often a spouse, parent, or child—as your medical power of attorney. This individual will make medical decisions for you if you become incapacitated. 4. Name a Digital Executor In today’s digital age, it's wise to appoint a digital executor. This person will follow your instructions regarding your digital assets, such as bank accounts, social media profiles, digital files, photos, and online storage. 5. Proof of Identity Gather important documents such as your marriage license, divorce certificates, Social Security card, and prenuptial agreements in one secure location. This will ensure easy access when needed. 6. Property Deeds and Titles Make sure all deeds and titles are up to date and easy to locate. If you have established a trust, retitle your property so that the trust is listed as the owner. 7. Funeral Instructions Prepare a list of your funeral preferences and keep it with your will and other important documents. Consider specifying whether you wish to be cremated, any specific passages you want read, or charities to which you’d like donations to be made in your honor. 8. Insurance Information Collect all of your insurance policies and make sure your executor knows where to find them and how to manage the information. While this checklist is not exhaustive, it provides a solid starting point. Working with an estate planning professional can ensure that your plan is comprehensive and up to date. If you’re ready to create or update your estate plan, contact us at the Law Office of Lauren Rios. We’re here to guide you every step of the way.
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What Is a Trust Protector? Traditionally, the three roles that must be filled when setting up a trust are the settlor (also called a grantor, trustor, or trustmaker), the trustee, and the beneficiary. All three roles are necessary to create a trust that functions properly. Although it is relatively common to use trust protectors in foreign asset protection trusts, a trust protector is a fairly new role in trusts drafted in the United States for estate planning purposes. However, as the number of trusts designed to last for generations grows, estate plans need more built-in flexibility. Giving a trust protector, through the terms of the trust, certain powers over the trust, such as removing or appointing trustees, adding or removing beneficiaries, and amending or even terminating the trust, ensures that your intentions for creating the trust are fulfilled despite changing law or circumstances. How Is a Trust Protector Selected? A settlor may select as a trust protector any individual or group of individuals, such as family members, business associates, friends, attorneys, accountants, or other professional advisors. The naming of a trust protector may be specific, such as “my neighbor John Doe,” or general, such as “a CPA selected by the majority of the owners of the [ABC CPA Firm].” The settlor provides for and selects a trust protector in the trust agreement. Who Makes a Good Trust Protector? Because of the many and varied powers that a trust protector can hold, you should name a trust protector who has attributes, knowledge, or skills suitable for the responsibilities of the role. For example, if the trust protector has the power to amend the terms of the trust to account for changes in tax law, the trust protector should have some understanding of tax law and how it will impact the trust. If a trust protector has the power to veto or direct trust distributions to beneficiaries, the selected trust protector should understand the family history and desires of the settlor. Different powers may require the selection of different trust protectors or possibly a committee of trust protectors. What Does a Trust Protector Do? Based on your wishes, the purposes of the trust, and applicable laws, the trust protector can hold many different powers, including administrative powers traditionally held by a trustee, such as the power to make distributions, and judicial powers traditionally held by a court, such as the power to remove beneficiaries. Trust protector powers can include the power to remove a trustee or appoint a successor trustee, add or remove beneficiaries, amend the trust agreement, exercise the voting rights of closely held business interests owned by the trust, interpret the terms of the trust, veto or direct trust distributions, terminate the trust, and appoint and remove members of a distribution or investment committee. This list is not exhaustive, and you should include any of these or other trust protector powers only after careful consideration of your desires and purposes for creating the trust. Reasons for Including a Trust Protector in Your Trust-Based Estate Plan There are several reasons to include a trust protector in your trust-based estate plan: Trust protectors offer increased flexibility and peace of mind. The administration of a perpetual trust that may last for generations can be a daunting task because no one knows what the future may hold. Including trust protector provisions in your trust agreement can ensure that your trust achieves your goals despite changing circumstances and laws. Trust protectors can provide additional oversight and support for a trustee. A trust protector can ensure that a trustee is properly administering the trust and carrying out the trust's purposes. If the trustee is delinquent in its duties, a trust protector may remove the trustee and appoint a better-suited trustee. A trust protector can also help a trustee correctly interpret trust provisions and address changes in the law or beneficiary circumstances. Trust protectors provide an easier and less costly means of modifying a trust. If a trust needs to be modified after the settlor's death, usually the only route is through the court system, a complicated and costly process. Giving a trust protector the power to modify the terms of a trust can prevent the need to go to court to modify the trust. Can I Name a Trust Protector for a Testamentary Trust? A testamentary trust, usually created through a will, comes into existence after the settlor dies and the will has been probated. A testator (the person who makes the will) can, and in many cases should, include trust protector provisions in a testamentary trust to ensure that their intent for the trust is properly carried out over time. Does Every State Allow Trust Protectors? State law varies in its treatment and classification of, and guidance for, trust protectors. Though many states have adopted a uniform set of laws governing trust protectors, or a modified version of these uniform laws, other states have not addressed trust protectors at all. It is important to consult an attorney familiar with your state's laws to understand whether trust protector provisions are right for you and your goals. Please contact us to learn more about naming a trust protector and discuss whether it is a good idea for you. We are happy to answer any questions you may have and help you craft an estate plan that is perfect for you and for your loved ones.
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