LIVING TRUSTS

Published on: December 21, 2016

How Does a “Power of Appointment” Affect My Estate Plan?

In a revocable living trust, the person making the trust (the grantor) usually decides how the trust’s assets should be distributed after he or she dies. However, there may be circumstances where the grantor wants to give that power to someone else, usually one of the trust’s beneficiaries. This is known as a “power of appointment.”

Court Rules Son Improperly Used Father’s Power of Appointment

If the grantor places no restrictions on a power of appointment, it is considered a “general” power. This means the beneficiary can name anyone–including themselves or their creditors–as recipients of the trust property. A special power of appointment, in contrast, restricts the beneficiary’s discretion.

Published on: October 15, 2016

How an Estate Planning Attorney Can Help Protect Your Will or Trust

by Scott C. Soady

One reason to hire an experienced San Diego estate planning attorney is to help protect your will or trust from a challenge after your death. It is not uncommon for relatives who may feel entitled to a greater share of a decedent’s estate to claim there was fraud or undue influence behind an estate planning document. In some cases, an estate planning attorney’s testimony can to see that your will or trust truly reflects your wishes.

Court Rejects Nephew’s Challenge to Uncle’s Trust

Here is a recent example from a decision by the California Fourth District Court of Appeal, which has jurisdiction over San Diego and surrounding counties. This is an unpublished decision, so this case should only be viewed as an illustration of how courts examine probate cases and not a definitive statement of California law on the subject.

Published on: September 12, 2016

How Much Discretion Does My Successor Trustee Have?

by Scott C. Soady

A revocable living trust allows you to maintain control over your property during your lifetime. Although you transfer the title of your property to a trustee, that trustee can be you, and more importantly, you are free to add or remove property from the trust as you see fit. Upon your death, however, the terms of your trust generally become irrevocable, and your successor trustee is bound by any instructions that have you left.

Trustee Not Permitted to Extend “Option Agreement” After Settlor’s Death

California courts will strictly construe the terms of your revocable living trust in an attempt to carry out your stated wishes. This means that a successor trustee’s discretion may be limited depending on how the trust is worded. A recent California appeals court decision offers a helpful illustration.

Published on: September 9, 2016

Can My Family’s Creditors Go After My Trust?

by Scott C. Soady

There are some estate planning situations in which you may want to protect a family member’s potential inheritance from his or her creditors. For example, many trusts contain what is known as a “spendthrift clause,” which restricts a beneficiary’s access to the trust principal. In other words, the trustee maintains control—subject to the terms of the trust—over how and when to make payments to the beneficiary. Since the beneficiary does not have direct access to the principal of the trust, it is not considered the beneficiary’s property and therefore is not subject to a court process in satisfaction of a judgment against the beneficiary. A spendthrift clause also typically prevents the beneficiary from assigning his or her interest in the trust to satisfy a creditor’s judgment.

“Shutdown” Clause Does Not Protect Beneficiary From Child Support Judgment

At least that is how a spendthrift clause works in theory. In practice, there are circumstances in which a court may still order a trust to pay a beneficiary’s creditors. A California appeals court recently addressed such a situation in a published opinion.

Published on: August 22, 2016

How California Probate Guardianships for Minors Work

by Scott C. Soady

If you have minor children, it is important to consider the estate planning implications of providing for them before they reach the age of 18. If you leave your children a substantial inheritance, it will be necessary to name a guardian for their estate until they reach the age of majority. A guardianship of the “estate” is separate from a guardianship of the “person.” The latter refers to the person who has physical custody of the child and oversees his or her daily care. A guardianship of the estate, in contrast, only deals with property owned by the minor child.

Family Member or Professional Fiduciary?

In many cases, a guardian of the person will also serve as guardian of the estate. But depending on the size and complexity of the inheritance that you plan to leave, it may make sense to name a separate guardian of the estate. For example, you might name a close relative to serve as guardian of the child’s person while designating a professional fiduciary to serve as guardian of the estate.

Published on: August 19, 2016

Do I Really Need a Will if I am Under the Age of 30?

by Scott C. Soady

Many younger people think they do not need to concern themselves with making a last will and testament. A will is something that older people make when they are in poor health or even on their deathbed, right? Of course, that is ludicrous thinking. Every day we see reports of people cut down in the prime of their lives due to an accident, and in many cases those individuals died without taking the time to make a proper estate plan.

“Star Trek” Actor’s Sudden Death Highlights Legal Effects of Dying Without a Will

Anton Yelchin, a 27-year-old actor residing in Los Angeles, died this past June after he was accidentally crushed by his own car. Yelchin was best known for his appearances in the recent “Star Trek” feature films, the most recent of which premiered shortly after his death. Recently, Yelchin’s parents filed a petition to open a probate estate for their son, who they say died without leaving a will.

Published on: July 30, 2016

How Elder Abuse and Undue Influence Affect California Estate Planning

by Scott C. Soady

Elder abuse remains a major problem in California estate planning. Relatives, caregivers, and other parties often exploit their relationship with someone who is ill or dying in order to obtain an inheritance from their estate. Such undue influence is against the law, and an interested party may ask a probate court to nullify any provision in a will or trust that benefits the abuser.

Court Holds Disclaimer Does Not End Elder Abuse Petition

A California appeals court in Santa Clara recently emphasized the public policy importance of discouraging elder abuse in a recent decision involving an ongoing contest to a revocable living trust. The trust was originally created by a married couple in 1990. Upon the wife’s death, the trust was subdivided into two trusts, one of which remained subject to amendment or revocation at the husband’s discretion.

Published on: July 13, 2016

Will Medi-Cal Take My House After I Die?

by Scott C. Soady

Paying for end-of-life care and final medical expenses can be a major problem for many California residents. California does offer federal Medicaid benefits for poor and disabled residents through the state’s Medi-Cal program. But Medi-Cal has a catch: once a recipient dies, the state is legally obligated (under federal Medicaid rules) to “seek reimbursement” from the person’s estate for any benefits paid.

This means Medi-Cal can go after the property in a deceased beneficiary’s probate estate or living trust. In many cases this includes the decedent’s home. When determining the eligibility of Medi-Cal benefits over the age of 55, the value of a person’s primary residence is excluded from income calculations. But after the beneficiary dies, the house becomes fair game for Medi-Cal officials seeking reimbursement.

However, there are a number of possible exemptions that heirs of a decedent may seek in order to avoid losing assets to a Medi-Cal claim. For example, if enforcing a lien against a property “would result in substantial hardship to other dependents, heirs, or survivors” of the decedent, Medi-Cal must waive its claim. Such “hardship waivers” are not automatically granted. The affected dependent or heir must apply for a waiver, and if it is denied, he or she may seek judicial review.

Published on: July 9, 2016

When Does My Trust Become Irrevocable?

by Scott C. Soady

Under California law, “Unless a trust is expressly made irrevocable by the trust instrument, the trust is revocable by the settlor.” This means that if you make a living trust as part of your estate plan, you are free to amend or revoke the trust at any time. You may, however, choose to make the trust (or part of a trust) irrevocable, in which case the trust should include clear language to that effect.

Court Upholds Husband’s Partial Revocation of Trust After Wife’s Death

Confusion over whether a trust is revocable can lead to litigation following the death of the settlor. Here is a recent example from here in California. This is only an illustration and not a binding statement of California law on the subject of revocable trusts.

Published on: June 25, 2016

What Happens if the Beneficiaries Named in My Will Die Before I Do?

by Scott C. Soady

When making a last will and testament, you may assume that the beneficiaries you name will outlive you. Of course, that is not always the case. So what happens, for example, if you leave your brother $10,000 in your will and he dies before you?

The Anti-Lapse Statute

Like many states, California has what is known as an “anti-lapse” statute. Under California’s version, if a named beneficiary is dead at the time a will is probated, the “issue of the deceased transferee” may inherit the gift in his place. So, to apply the anti-lapse statute to the above hypothetical, your brother’s children would receive the $10,000 gift you left him in your will.