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Estate Planning FAQ

Get answers to frequently asked questions about trusts, wills, and other estate planning tools in California. Call (818) 892-7093 to get started.

  • Power of Attorney

    • Why should I develop a power of attorney?

      Essentially, you should develop powers of attorney – both medical and financial powers of attorney – because you never know what tomorrow will bring and because you want to make sure that your important medical and financial decisions will be made by someone you trust.

      Powers of attorney typically come into play when certain events occur and/or when people do not have the capacity to make medical and/or financial decisions for themselves. They are effectively a safety net or contingency plan that can provide you with important protections if you should become incapacitated in the future for any reason.

    • Who should I designate as my agent or attorney -in-fact?
      Your agent or attorney-in-fact will be the person you have named to hold the power of attorney for you. Consequently, you should choose someone whom you completely trust to handle certain medical and/or financial decisions on your behalf.
    • What happens if I don’t set up powers of attorney?
      If you don’t have powers of attorney and something happens to you, rendering you incapacitated, it will usually be up to the court to appoint someone as your agent. This can end up meaning that someone you would not have selected ends up making decisions on your behalf.
    • Can I change powers of attorney once they are in place?
      Yes, as long as you are of sound mind and are capable of communicating your wishes, you can change your powers of attorney or any aspect of your estate plan. In fact, you should change both of these documents when your life circumstances and/or future wishes may change.
  • Living Trusts

    • How can a living trust help me?

      Depending on your situation, developing living trusts may offer you various benefits. This is because, with living trusts, you can:

      • Transfer certain assets and/or property to the trust.
      • Ensure these assets and/or property are handled as you wish should you ever become incapacitated in the future.
      • Detail how you want these assets and/or property to be distributed upon your death, and your wishes can be carried out without court supervision or approval.

      So, essentially, living trusts can provide you with an effective way of transferring certain assets out of your possession and, ultimately, into the possession of your chosen beneficiary both in the manner you want and with minimal legal interventions.

    • Are living trusts for everyone?

      No. While living trusts can certainly be beneficial when people own significant assets and/or property, these estate planning tools are generally not recommended for:

      • Younger people without children and without significant assets.
      • People who have very simple estate plans.
      • Those who would like the court to supervise the administration of their estate after they pass away.

      In contrast, people who do have more significant assets will usually benefit far more from developing living trusts.

    • What happens with my living trust if I’m incapacitated in the future?

      While the specific course of action will depend on the provisions of the living trust you’ve set up, in general, your selected “successor trustee” would step in to manage the trust and carry out your wishes regarding it.

      Here, we also want to point out that living trusts are just one component of estate planning that should generally be supported with other tools, such as powers of attorney, wills, etc. This is because, should you become incapacitated in the future:

      • Your successor trust will be able to manage the assets held by the trust, but (s)he may not have any power or control over your assets that have not been transferred to the trust.
      • Other estate planning tools can offer you other protections and prevent the court from appointing strangers (or even people who you may not prefer) to be conservators for you and your affairs.
    • What happens with living trusts after I pass away?

      Upon your death:

      • A revocable living trust that you have set up will automatically become an irrevocable trust.
      • Your successor trustee will manage and distribute the property of the trust according to your wishes (detailed in the trust documents).
      • This can be done without the intervention of the court, which can save your beneficiaries time and money.

      Assets and property you own outside of the living trust will likely have to go through probate.

    • How are assets transferred into living trusts?

      After you’ve officially set up a living trust, the next step will be to transfer assets into the trust – or funding the trust. This process generally involves completing various paperwork to transfer property, like the following, into living trusts:

      • Real estate (including that owned in other states)
      • Bank account holdings
      • Stock and bond certificates
      • Community property
    • Do I still need a will if I develop a living trust?

      Most likely yes. While living trusts can manage certain assets for you, they will not cover other aspects of your affairs that wills can. In particular, unlike living trusts, wills can have provisions to cover things like end of life directives, future guardianship of minor children, etc.

      So, if you are thinking about developing a living trust, it’s probably also a good time to put a will – and a comprehensive estate plan – in place with the help of an experienced lawyer.

    • Are there any drawbacks to having living trusts?

      There can be. In fact, the most notable disadvantage to setting up living trusts can be the fact that trustees, who are not under direct court supervision, can end up not acting the best interests of grantors and/or beneficiaries. In the worst cases, this could result in unethical trustees doing things like misappropriating trust assets, stealing from the trust, etc.

      While these situations can be frustrating and maddening, there is legal recourse to hold such trustees accountable (such as pursuing breach of fiduciary lawsuits).

    • Who should I choose as the trustee for my living trust?

      When setting up living trusts, many people appoint themselves as the trustee. If, however, you are too busy to manage a trust and/or you want experienced help with this effort, you can choose someone else to be the trustee (and you will have to name someone else to be the successor trust to manage the trust if you become incapacitated or at the point when you pass away).

      While good trustees will generally be people who you trust and/or who you are close to, specifically, these people can be:

      • Spouses or domestic partners
      • Children, parents or siblings
      • Other relatives or family friends
      • Colleagues or business associates
      • Professional fiduciaries
    • Do I need a lawyer to help me develop living trusts?
      Yes. Living trusts are legal documents, and the California State Bar “urges you to seek advice only from professionals who are qualified to give estate planning advice” when you are considering or are ready to develop a living trust.
  • Conservatorships

    • How Does Someone Become a Conservator?

      Conservators are appointed via court orders. While spouses and family members can serve as conservators, so too can others – like attorneys.

      Before appointing a conservator, the court will review the details of a situation to determine if there is a need for a conservatorship in the first place.

      Here, it’s also important to note that conservatorship powers can be split between two (or more) parties when the court sees fit (e.g., there can be co-conservators for a single protected person, who may also be referred to as the ward).

    • What’s the Difference Between a Conservator and a Guardian?

      While the terms conservator and guardian may be used interchangeably in some states, typically, the difference between these terms is that:

      • Conservators are generally responsible for overseeing property, assets, financial decisions and/or legal decisions.
      • Guardians are usually responsible for handling care-related provisions for the ward (like living arrangements, health care, etc.).

      Here, it should be noted that the courts can limit or expand the powers of conservators and guardians to the extent they see fit (based on the specific needs and/or limitations of the ward).

    • When Are Conservatorships Established?

      Typically, it’s advisable to establish a conservatorship if or when a loved one:

      • Is seriously injured in an accident.
      • Slips into a coma.
      • Is diagnosed with dementia, Alzheimer’s disease, or some other progressively debilitating condition.
      • Is living with mental health issues or impairments.
    • What Are the Benefits of Conservatorships?

      The advantages to conservatorships can include (and are by no means limited to):

      • Being empowered to make important decisions on behalf of your loved one.
      • Being able to carry out your loved one’s wishes (when they cannot do so themselves).
      • Preventing your loved one from becoming a ward of the state.

      Those who accept the role of conservator can also receive financial compensation for serving in this role (with that compensation being set by the court).

    • Are There Any Downsides to Becoming a Conservator?
      This is more difficult to answer without understanding the specifics of your situation, as there may be some possible drawbacks to serving as a conservator. However, in general, the benefits of conservatorships (when they are properly set up) can far outweigh any drawbacks, especially if you are the individual appointed as a conservator to protect your loved one.

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