My uncle just passed away and my aunt said he left me some money in his trust that I would receive after a reasonable period of time for the trust and estate administration. What would be a reasonable period of time?
Generally, a trustee will wait at least 120 days from the date the Notice of Trust Administration is mailed to all beneficiaries and interested parties before making any distribution. If your inheritance is a specific bequest, i.e. an exact amount of money, you should expect to receive it after the 120 day period.
If my children predecease me, I want my grandchildren to inherit their parent’s share of my estate. Do I need a special provision in my trust for minors?
Yes, you could include a “Grandchildren’s Trust” (contingency trust) within your trust, or you could give your trustee authority to distribute property to a Custodian under the California Uniform Transfers to Minors Act under California Probate Code Section 3900, et seq. and indicate, “No court supervision shall be required.”
My wife and I executed a restated trust several years ago. While going through some old paperwork, I found our original trust. Can I just shred the original trust?
You should keep the original trust document because you may have assets titled in the name of your original trust. Also, various companies or institutions may ask to see the original trust.
What is a “living will?”
A “living will,” otherwise known as an end-of-life decisions declaration, which is generally included in an Advance Health Care Directive, is a document which instructs doctors or others to refrain from the use of extraordinary measures to prolong one’s life in the event of a terminal illness.
Can I have more than one asset management power of attorney?
Yes, a general asset management power of attorney gives broad authorizations to the agent. The agent may be able to make legal choices, or financial or business decisions. A special asset management power of attorney narrows what choices the agent can make. You can even make several different powers of attorney, with different agents for each. A special power of attorney allows you to be more specific.
I would like to leave specific instructions to my trustee or agents as to how I wish to have my remains dealt with, provide details of prior arrangements, and designate the person to carry out my wishes. What is the best way to do this?
You should ask your attorney to prepare a document called “Final Disposition Instructions.” You will need to date and sign it and have it witnessed by two adults.
How can I make sure my tangible personal property is transferred to my trust?
You should ask your attorney to prepare an Assignment of Personal Property which acts as the method of transferring all of your tangible personal property to your trust, thereby avoiding the possibility of having to probate these assets. The Assignment could also include digital assets and/or rights (social media, on-line accounts and/or e-mail accounts).
Will I lose my homestead exemption if I put my home in my trust?
No, as long as you reserve the “equitable title to the real estate,” or maintain complete and unlimited possession, use and control of the real property that you occupy for residential purposes.
Can I limit the powers of the trustees named in my trust?
Definitely. Your attorney can include a provision for “Settlor’s Retained Powers” (powers that only you would have), and customize those powers to meet your needs and wishes.
I am concerned that when my dad passes away there will be fighting among the siblings over the distribution of his trust estate. Is there something we can do to avoid the fighting?
Yes. You and your siblings could have an attorney prepare a Plan of Distribution for all to sign. If your dad’s trust says his trust estate is to be divided equally among his children, the Plan would set forth the “how, what and why” each child would receive. I would highly recommend you have an experienced attorney prepare the Plan for you. It would be well worth the expense and you would have a legally binding agreement.
I hear my parents and their friends talking about wills and trusts and their “estate planning docs.” I wonder if this is something my wife and I should do for our family even though we are young and don’t expect to die soon?
I’m impressed! You and your wife should definitely do your estate planning, not only for your family, but for yourselves. You’re never too young to be planning for your future and your estate planning is a very important part of that. So, get going, you won’t regret it!
My husband and I signed a premarital agreement before we were married which sets out our separate property, and what will be our community property. Should we have a joint trust or do separate property trusts?
That’s a tough question to answer without having all the facts because each of you could do a separate property trust, and also have a joint trust. I would have to review your premarital agreement, as well as your separate and your community property assets. Also, we would have to keep in mind the Federal Estate Tax Exemption per estate, making sure your separate and community property estates do not exceed the exemption.
I am a widow with a sizable estate. My husband and I created an A/B trust years ago, but even with the new Federal Estate Tax Exemption I am still concerned that my estate will have to pay federal estate taxes. Is there anything I can do now?
One suggestion, which would not only benefit your heirs later, but would help them now, would be to give gifts to your children and grandchildren. As of 2015 you can gift up to $14,000 per donee per year to any number of donees and no gift tax is due.
What are some of the changes that would prompt me to change my trust or my estate documents?
Changes in family relations, such as a divorce or death of a spouse; changes in economic and personal condition, such as asset values, property acquired in a different state, change in health or business interests; and, changes in laws, your residence, or death of the executor, trustee or guardian you named in your estate documents. You should get your documents out, dust them off and review them at least once a year.
I would very much like to do a will and/or trust. I have been calling around to law offices to see how much they charge and don’t think I can afford it. What would a reasonable fee be to prepare a will or a trust?
What is reasonable is relative. I suggest that you first decide on a budget for doing the documents you want. You don’t have to do them all at once but can do some over a period of time. Start with the trust and a pour-over will. Then, ask your family members and friends to recommend an attorney they have confidence in and feel has reasonable rates.
My son is recently divorced and I am concerned that his former wife will try to get some of his inheritance from my estate after I pass away. What can I do to protect my son?
There are a number of steps you can take; however, this is one of those questions that you should ask your attorney as all estates and family law cases are unique. Your attorney may suggest that you direct your trustee to put your son’s inheritance in an irrevocable trust. Call your attorney and discuss your concerns with him, and you will sleep better at night.
I am a thirty-five year old woman and I am getting married this year. Several years ago I did some estate planning, which included a will and a trust and I don’t think I want to change anything as my fiancee and I have agreed to keep our assets separate. Is there anything I would have to change?
I would suggest that before you set the date, you consider doing a pre-marital agreement and start from there. Alternatively, I would recommend doing a new pour-over will and restated trust after you are married. Your documents need to reflect your current status and address the issues of separate property and community property.
My mother said her doctor asked her if she wanted to complete a “POLST” form. What is a POLST form?
Physician Orders for Life Sustaining Treatment, a last minute statement of what current treatment or medications a patient wants or does not want related to “Do Not Resuscitate.” If your mother has a health care power of attorney, it may authorize her agent to complete this form for her. However, the newer versions such as the Advanced Health Care Directive may cover the same issues as a POLST form. Check to see if your mother has a health care power of attorney. If not, she may want to do one.
My trust states that my Trustee shall use the trust assets to provide for my maintenance, care, support and education, but what about anyone that is dependent upon me?
Your attorney can add language to your trust to cover this so that even if you are incapacitated, those who are dependent upon you, because they are a minor or are physically or mentally challenged, can continued to be cared for by your Trustee.
I would like to designate my trust as the primary beneficiary of my IRA because I don’t want the money paid directly to my children, but I am not sure this is the right thing to do.
Just make sure that the trust can receive the same “stretch-out” on the pay-outs from any IRA or other tax deferred accounts which are paid to the trust – this language has to be fairly technical to meet the IRS requirements. Make sure you contact an attorney who has experience in estate planning to handle this for you.
My dad said he was going to make sure his attorney put a no contest provision in his trust. Can he do that?
Yes. To the extent permitted under California law, if anyone challenges the validity of the trust or your dad’s intent as expressed in his trust, that person and his or her descendants will receive nothing from the trust – as if they predeceased your dad. So, honor your dad’s wishes and be nice to him.
I am eighty years old and I want to make sure I can live in my home for as long as reasonably possible. How can I make sure my wishes are honored?
You could have an attorney prepare a California Advance Health Care Directive for you, and ask him or her to include a provision under instructions for personal care stating that it is your desire that your agent make your living at home a priority even if it requires twenty-four hour care. The newer forms of the Directive have standard language to cover this issue.
I tried to open an account using my Certificate of Trust, but they refused it and said they needed to see my trust. What should I do?
Pursuant to California Probate Code Section 18100.5, “trustee may present a certification of trust to any person in lieu of providing a copy of the trust instrument to establish the existence or terms of the trust. . . . A person may require that the trustee offering the certification of trust provide copies of those excerpts from the original trust documents and amendments thereto which designate the trustee and confer upon the trustee the power to act in the pending transaction.” I hope this answers your question.
My wife and I would like to give each other any interest we may have in the other’s retirement plans. How can we do this?
You could include a provision in your will stating that you give to your wife/husband all of your interest, if any, in any qualified retirement plans (IRA, Keogh, 401k, Pension and/or Profit-Sharing Plans) of which the other is the owner/participant.
My friend was telling me that she has a separate estate planning document called “End-of-Life Decisions Declaration.” When my attorney prepared my estate planning documents, I didn’t sign an “End-of-Life Decisions Declaration,” but I did sign a California Advance Health Care Directive. Are they the same thing?
They are different documents; however, the newer versions of the California Health Care Directive contain provisions for “end-of-life” decisions. I suggest you get out your Health Care Directive and review it to make sure it is what you want. You can always change it.
What is the Uniform Anatomical Gift Act?
The UAGA governs organ donations for the purpose of transplantation. It also governs the making of anatomical gifts of one’s cadaver to be dissected in the study of medicine. You can include a provision in your health care power of attorney giving your agent authority to make such a gift or not make such a gift. However, the Act does provide that in the absence of such a document, a surviving spouse, or if no spouse, specific relatives can made the gift.