Estate planning is not a “do-it-yourself” project. Poorly drafted or improperly executed documents can result in increased costs, delays, and damaged relationships. Careful thought should be given to the nomination of successor trustees and other fiduciaries, and care should be taken to provide for distribution that is fair and accomplishes the grantor’s intentions.
Do I need a power of attorney?
What is an Advance Directive?
Failure to seek competent legal advice early in the administration process is one of the most common mistakes that lead to disputes. Sometimes, misunderstandings can be resolved with prompt, thorough attention to legal requirements and adherence to the terms of the trust. When disputes can’t be avoided, it is critical to be represented by a law firm with experience in litigating in the probate court. You need an attorney who specializes in estate litigation and knows how to fight on your behalf.
Even where there are no disputes, trustees and other fiduciaries require effective representation in order to carry out their duties under California and federal laws, various taxing authorities, and the terms of the trust or will. They must do so in the best interest of the beneficiaries. If a trustee breaches that fiduciary duty by failing to account or using the trust funds for his or her benefit, involving an experienced attorney early may resolve the issue without litigation. It is important to know that Statutes of Limitations restrict the time for filing claims for breaches of fiduciary duty.
The roles of a trustee, agent under a power of attorney, and executor involve a “fiduciary” relationship – administering assets in the interest of another person. A trustee is appointed to administer a trust created by a person (referred to as a grantor or settlor), upon the incapacity or death of the grantor. It should go without saying that during the incapacity of the grantor, the trustee must exercise scrupulous care to administer the trust estate for the benefit of the grantor. An agent acting under a power of attorney (sometimes known as “attorney-in-fact”) has the same responsibility to act in the best interest of the person who granted the power. Upon death of the grantor, the trustee administers the assets for the benefit of the beneficiaries. Similarly, an executor who is appointed by the probate court must administer the decedent’s estate for the benefit of the beneficiaries.
Disputes involving estates can arise for a variety of reasons. Disinherited family members may wish to contest the validity of a will or trust due to lack of mental capacity, fraud, duress or undue influence; beneficiaries may object to the administration of a trust or estate as a result of a breach of fiduciary duty; or title to real property, bank accounts or investments may be inconsistent with the owner’s intentions. Disputes such as these are resolved in probate court, so estate litigation is often referred to as probate litigation. It is critical that clients have a team of estate litigators who have the dedication and the expertise to effectively resolve the most complex of trust and estate contests. Whatever the issues, VLG attorneys will ensure that our clients receive the highest quality legal services to achieve the best possible outcome.
A will is a legal document that describes how your assets should be distributed in the event of death. The actual distribution, however, is controlled by a legal process called probate, which is Latin for “prove the will.” Upon your death, the will becomes a public document, enters the probate process, and is no longer controlled by your family, but by the court and probate attorneys. Probate can be cumbersome, time-consuming, expensive, and emotionally traumatic during a family’s time of grief and vulnerability.
A living trust avoids probate because your property is owned by the trust, so technically there’s nothing for the probate courts to administer. Whomever you name as your “successor trustee” gains control of your assets and distributes them exactly according to your instructions.
A will is a written document disposing of a person’s estate at death.
The most common estate planning documents you will most likely need prepared are a: will, trust, durable powers of attorney, and advance health care directives.
Estate planning allows you to designate the recipient(s) of your wealth upon your death. In addition, the selection of a guardian for minor children is chosen throughout the estate planning process. Oftentimes, estate planning can provide tax savings, tax breaks, or other tax deferments. Estate planning gives you greater control over your assets, who gets them, and in what manner, after your death.
An estate plan helps ensure that the wealth accumulated during life passes to the beneficiary of choice, in the manner desired, while minimizing taxes and increasing the efficiency of the asset transfer. If you do not determine what you want to happen to your wealth, the state will do it for you at the time of your death and the result may be vastly different from what you intend.
Contact the Velasco Law Group for all of your estate and probate needs, including: