Everyone knows that an estate plan can ensure your chosen beneficiaries receive the right inheritance. But did you know there are other benefits too? Here’s five things a good estate plan can for you.

1. Protect Against Disability – No, your estate plan can’t prevent disability from striking but it can certainly ensure that you and your estate are protected if it happens. Using an Advanced Health Care Directive and General Durable Power of Attorney can ensure that your medical wishes are followed and that your finances are handled by someone you trust.
2. Provide Incentives to Your Heirs – With the right planning tools, you can do much more than leave your heirs a lump sum estate. Instead, you can create incentives for them to excel and achieve by offering inheritance bonuses for graduating college, getting married or other milestones. You can also set it up so that your heirs’ inheritance matches whatever income they earn each year. If they want a bigger inheritance, they must find a way to earn a better living.
3. Avoid Probate – Yes, with the right tools, your estate plan can help your heirs stay out of probate court. This makes the whole property distribution process much smoother and ensures that the details of your estate remain private.
4. Sponsor A Charity – There are certain types of trusts that allow you to structure assets so that they benefit both your heirs and your favorite charity.  Donating this way also provides significant tax breaks to all parties involved.
5. Protect Dsabled Dependents – A Special Needs Trust can ensure that your disabled loved one continues to qualify for important public benefit programs while still enjoying the benefits of his or her inheritance.

Of course, that’s not all an estate plan can do, but it’s a good start. To learn more about how a good estate plan can make your life easier, contact an experienced and qualified estate planning attorney.

Northern California Estate Planning Counselors, LLP is a member of the American Academy of Estate Planning Attorneys.

If you are one of the millions of Americans who has failed to create an estate plan, you are officially signed up for the government estate plan. When you fail to execute as much as a Last Will and Testament  or Living Trust prior to your death, your estate will be handled according to the government’s rules and laws since you are considered to have died intestate. So how does the government estate plan work?

For starters, except for the most modest estates, it is likely that everything you own may have to go through the expensive, time consuming and public probate process before any of it is available for your heirs to use. For example, if your home is titled in your name, it will be officially part of the probate process as will bank accounts, vehicles and other personal items titled in your name.

Once part of the probate process, the state laws of intestacy will determine who receives your estate assets. If you wanted your spouse to get everything, that may not happen under your state’s intestacy laws. If you were not legally married at the time of your death, a life partner may actually end up with nothing. If your estate was modest to begin with, the legal costs associated with probate could diminish it significantly.

The probate court may also determine who becomes the guardian of your minor children if you failed to leave behind a Last Will and Testament and you were not legally married at the time of your death.

To avoid being part of the government’s estate plan, take the time to create your own.

The bottom line is that the government’s estate plan could be far removed from what you actually wanted to happen to your estate so now is the time to create an estate plan of your own design.

The best place to start is with a meeting with an experienced and qualified estate planning attorney. Resist the urge to try to save a few bucks by employing some self help tools such as a will or trust created via a CD or Internet web site.  There is no way that these cut-rate, one size fits all, plans can create a truly effective plan for you and your loved ones.

Northern California Estate Planning Counselors, LLP is a member of the American Academy of Estate Planning Attorneys.

When someone dies, they typically leave behind various estate assets. This may include cash, investments, personal property or real property. All of the decedents property must be legally transferred upon his or her death. How the property is handled depends on a number of factors.

Property held in joint tenancy with another person will pass by operation of law to the surviving joint tenant when the one of the joint tenant dies.  In many cases, property held by husband and wife as community property can also pass automatically to the surviving spouse.

Some property may be transferred automatically upon the death of the decedent. Property held in a trust, for example, may already be legally owned by the trust when the decedent dies or may automatically transfer upon death to the trust. Accounts that are held as “pay on death”  or “transfer on death” also automatically transfer to designated beneficiaries as will life insurance proceeds.

If the decedent left behind a valid Last Will and Testament, property that did not automatically transfer will be part of the probate process. Specific bequests will eventually be transferred to the named beneficiary. For example, if the decedent bequeathed his personal residence to his son in his Will, the title will eventually be transferred to the son.

Property that did not automatically transfer, or that was not part of a specific bequest, will be transferred to beneficiaries if a Will was left, or heirs if the decedent died intestate, after the probate process is completed. Non-liquid assets will be sold by the executor or personal representative and turned into cash. Once all assets have been liquidated, the executor or personal representative will distribute the cash pursuant to the Will terms or pursuant to the state intestate laws if no Will was left behind.

Problems associated with using a Will as the basis for transfering assets at death include higher administration costs, delays and loss of control and privacy because, except for modest estates, it is likely the estate will have to go through the probate process at the court house before assets can be distributed.

Northern California Estate Planning Counselors, LLP is a member of the American Academy of Estate Planning Attorneys.

Under ideal circumstances, you will know well ahead of time if someone plans to nominate you to be the executor in a Last Will and Testament. Of course we all know that life doesn’t always present us with ideal circumstances. If you have recently been notified that someone died and nominated you to be the executor of the estate in his or her Will, you may be wondering what to do next.

To begin with, you need to know that you are not required to accept the position of executor. You are free to explain that while you appreciate the confidence the decedent had in you, you do not feel you are in a position to accept the position.

You should also know that being identified as the executor of a Will does not automatically empower you to act.  In smaller estates you may not have to go to court, but generally, you will not have any significant powers until at least 4o days after death.  Then you will typically need to have a specially prepared Affidavit to gather assets.

In larger estates (typically $150,000 and up), you will first need lodge the Will with the court and to petition the probate court to be appointed as the executor.  Once approved by the court, you will be issued Letters Testamentary which will give you legal authority to handle the decedent’s affairs.

In general, once the court has appointed you, there are a few important things that need to be done as soon as possible. Securing the estate assets is at the top of the list. They will eventually be inventoried and valued; however, for now you need to secure them to the best of your ability.

In acting as an executor, you are held to the standard of a fiduciary which imposes a duty on you to act in the interests of the decedent’s estate and the beneficiaries.  Failing to meet your fiduciary duties could expose you to liability to the beneficiaries and even to creditors of the estate.

The position of executor can be difficult and time consuming. Once you decide to accept the appointment, you should seek help from an experienced and qualified probate  attorney. The attorneys fees will be paid for out of the estate assets, not out of your pocket. You, too, are entitled to a fee as the executor of an estate, but it is subject to court approval.

Northern California Estate Planning Counselors, LLP is a member of the American Academy of Estate Planning Attorneys.

Believed to be the first of its kind in the United States, the State of Nebraska has recently proposed legislation that would grant the executor of a decedent’s estate access to social media, e-mail, micro-blogging, and other similar accounts. The legislation would not apply to accounts that have been specifically addressed in a decedent’s estate plan with instructions regarding who should control the account; however, all other accounts would fall under the control of the estate executor if the legislation passes.

At the present time, how a social media account is handled upon the death of the account holder is decided by the account administrator. Social media giant Facebook, for instance, has an internal policy that creates a memorial page once notified by family members of the death of the account holder. Once the memorial page has been established, “friends” of the decedent may continue to post comments, but no one is actually allowed to log-on to the account. The Nebraska legislation is aimed at changing policies such as this one by allowing the executor of the estate control over the “asset”.

The Nebraska legislation should remind all of us how fluid the definition of “asset” is for estate planning purposes. Just a decade ago, most of us would not have given much thought, if any, to electronic accounts, files, or communications when planning our estate. In the new digital age, however, we may need to re-evaluate what needs to be included in our estate plan.

The best way to incorporate these protections into an estate plan is to work with a qualified and experienced estate planning attorney.  Don’t expect any guidance on these issues from self-help estate planning books, CDs and web sites nor from the bargain-basement “trust mills”

Northern California Estate Planning Counselors, LLP is a member of the American Academy of Estate Planning Attorneys.

When beginning to think about your estate planning needs, you may decide to execute a will.  A will can allow you to achieve a number of goals.  However, it likely won’t allow you to handle all of your estate planning affairs unless you have a simple and modest estate.  Take a look at the following information, to learn more.  If you have any questions about the use of a will, contact an experienced and qualified estate planning attorney.

• You can’t control all asset distribution.  It’s important to note that you can’t control how all of your assets will be distributed with the use of a will.  If you have assets that are held in joint tenancy with another individual, they will be transferred automatically to the joint owner after your death regardless of what you will says.

 Additionally, assets in a revocable living trust follow the trust’s instructions.  Assets with beneficiary designations are also not transferred through the use of a will.

Make sure that you work with an experienced and qualified estate planning attorney, if you want to make changes to how these assets are distributed.  You can’t change your mind by outlining different terms in your will.

• You can’t plan for your pet’s future with a simple will.  If you want to include your pet in your planning, you will need to use other methods or at least specific provisions for your pet in your will.  You can’t leave asset to your pet with a simple will.

You may want to consider creating a pet trust.  A pet trust allows you to leave assets for the care of your pet, and can allow you to choose a loving and responsible caretaker to care for your pet on a daily basis.

• Your will can be contested, or challenged.  If you want to make sure that your wishes are respected, you may want to consider other planning tools.  This is an important thing to consider, if you think that your family will disagree with, and challenge, your wishes.

Make sure that you consider using a combination of estate planning tools.  This will allow you to have a full plan in place.  If you have any questions about creating a will or other estate planning documents, consult with a qualified and experienced estate planning attorney.

Northern California Estate Planning Counselors, LLP is a member of the American Academy of Estate Planning Attorneys.

When serving as executor of an estate, you are responsible for identifying legitimate creditor claims.  If you didn’t know better, you might accidently pay claims that aren’t due, such as student loans.  The liability for student loans in canceled at death.  If you’re responsible for settling an estate (or trust) be sure to consult a probate – estate planning attorney for good advice.

Executor Duties

This is a list of common executor duties in California:

• Lodge the will and file a probate probate petition at the courthouse in the county where the decedent resided at his or her death.
• Do whatever the court orders.
• Identify, gather, appraise, manage, and protect all assets.
• Identify and pay legitimate creditor claims, not student loans.
• Communicate with beneficiaries.
• Work with needed professional advisors such as probate attorney and CPA.
• File and pay all appropriate tax returns such as last income tax return for decedent, estate income tax return, California inheritance tax return, and federal estate tax return.
• Distribute assets to beneficiaries as the court directs.
• Close estate with permission of the court.

Can I Just Carry Out the Executor Duties without Professional Advisor Assistance?

There is no law mandating that you have to hire a probate attorney, but theCalifornia law holds that an executor is personally liable for losses sustained by the estate and mistakes he or she makes.  What if you paid a student loan bill that wasn’t due?  Your personal assets are at risk.

Qualified and experienced probate attorneys are highly trained and carry malpractice insurance.  They handle estates as part of their normal business practice.

It’s better to error on the conservative side, consult with a qualified and experienced probate attorney if you are the executor of an estate.  Remember the student loan example.

Northern California Estate Planning Counselors, LLP is a member of the American Academy of Estate Planning Attorneys.

As you go through life, you need to make sure that you have a valid and comprehensive estate plan in place.  An estate plan will allow you to live your life with less stress, and can ensure that your affairs are in order, no matter what.  Take a look at the 5 questions below to ask yourself about your estate plan.

Do you have a will or trust in place?  If you’re just beginning your planning, you may not have a will or trust.  These are fundamental planning tools.  You can appoint a trusted helper to handle your estate affairs, appoint a guardian for your minor children, and determine how your property will be distributed to your chosen beneficiaries.  If you ignore the need for a will or trust, you won’t be able to have a say in these important matters.

Have you considered incapacity planning?  If you’re ever incapacitated, you won’t be able to communicate and legally effectuate your wishes.  With the right plan in place, you can appoint trusted helpers to make financial and medical decisions on your behalf.  You can also outline important wishes such as end of life treatment decisions. These could include financial powers of attorney and advance health care directives.

Have you planned so that your family is always protected?  Life insurance is one tool to consider as part of an estate plan.  This makes it possible for your loved ones to have the money that they need to pay last expenses, debts, and future bills.

Do you want to avoid probate?  Many people choose to avoid probate because it’s expensive, takes a long time, and makes your affairs public.  If you want to keep your personal information private, and make sure that your loved ones receive their inheritances quickly, consider probate avoidance techniques which may include a living trust.

Is your estate plan up to date?  Many people create a plan, but fail to update.  You need to periodcially review your plan so that you ensure that your current needs are met, and to determine if updates need to be made.  If you’ve experienced life changes, or if you haven’t looked at your planning in several years, now is the time to review with an experienced and qualifit attorney.

If you have any questions about your estate plan needs, consult with a qualified estate planning attorney.

Northern California Estate Planning Counselors, LLP is a member of the American Academy of Estate Planning Attorneys.

Many folks in California create living trusts to, among other reasons, avoid the hgh costs of a probate proceeding. Regretabably, some may think they’re saving money even more with do-it-yourself kits, Internet trusts, or by working with a paralegal or a general practitioner. If you go those routes, you increas your chances that your living trust may not avoid probate.

Why? Why Won’t my Living Trust Avoid Probate?

 Good question. We get this question all of the time and are happy to answer. Yes, a well drafted living trust is designed to avoid probate.  However, the trust only controls assets titled in the name of the trust (or made payable to the trust upon death such as life insurance and retirement plans.)

If you own any significant asset in your individual name, the chance of a probate or other expensive court-based proceeding greatly increases.

If you own any asset in joint tenancy (with rights of survivorship), the asset will avoid probate on the death of the first person to die, but not the last.  Upon the death of the surviving owner, probate will likely be required.

You Must Fund Your Trust

 The purpose of this article is to emphasize the importance of funding your living trust.  You cannot stop once you sign the document and your estate planning attorney delivers the papers to you.

You must fund your trust.

This means that you must retitle the title of all of your assets into the name of the trust (and make the trust the beneficiary of your retirement plans, life insurance, and annuities.)  While this may sound simple, there are a number of considerations to take into account in handling this critical assets.  Well drafted living trusts, which you will not find from cut-rate trust sources, contain special provisions for the handling of, among other things, retirement accounts and life insurance.

Funding problems are just one of the many defects that we have observed in bargain basement trusts which foolhardy bargain hunters unfortunately fall prey.

If you have questions about funding your trust, you would be wise to seek the advice from an experienced and  qualified estate planning attorney. Your estate plan and avoiding probate depends upon accurate funding.

Northern California Estate Planning Counselors, LLP is a member of the American Academy of Estate Planning Attorneys.

Letters of administration and letters testamentary are specific types of legal documents that are used in the probate process, the court-based legal process in which property that a deceased person owned is transferred to others. The laws and procedures involved in the issuance of these letters of differ by the type of probate procedure involved.  The following discussion discusses California’s procedures.

The Probate Process: Once a person dies with either a will or no will or trust, someone has to step in and manage all the property that person left behind. This person is generally known as the personal representative. In order for there to be a personal representative, except for modest estates, a probate court has to appoint someone to serve in the position. Once appointed, the court will issue letters of administration or letters testamentary to officially recognize the administrator.

Letters:  In cases where there is a will in which an executor has been nominated by the person who created the will, the probate court will issue letters testatmentary to the executor.  In cases where there is no will or the will does not nominate an executor, the probate court will issue letters testamentary.  Once appointed and after the letters have been issued, an administrator or executor can begin managing the estate. For example, the administrator can present the letters of administration to the decedent’s bank and then use the funds in the estate accounts.

Wills: You cannot give someone letters of administration or letters testamentary, but you can make a choice about who receives them. If you want a specific person to administer your estate, you can nominate that person in your Last Will and Testament to be your executor.  You can choose also provide alternates if the original executor is unwilling or unable to serve.  However, except for modest estates, that person will not be empowered to act until appointed by the court and issues letters signed by a judge.

The probate process is time consuming, complex and complicated and most often far beyond the abilities of a lay person. If you will be serving as an executor or administrator of someone’s estate, you will be held to the very high standards of conduct applied to a fiduciary.  Accordingly, to avoid possible liability for the failure to properly carry out the myriad of legal duties imposed upon an executor or administrator, it is prudent to retain a qualified and  experienced probate attorney to assist you.  The fees of the probate attorney are paid for by the decedent’s estate, not personally by the executor or administrator.  The executor and adminstrator can also be compensated for their services from the decedent’s estate.

Northern California Estate Planning Counselors, LLP is a member of the American Academy of Estate Planning Attorneys.