Two Kinds of Probate Lawyers

Your role in the probate process will determine which kind of probate lawyer you want to hire.  If you need someone who can handle the administration of the estate and help it move through the probate process, then you are most likely looking for a transactional lawyer.  On the other hand, if you are looking for someone to represent you as you make a stand for what you believe should be your rights to the estate, then you would be better suited with a probate litigator.

Keep in mind that many California probate lawyers are skilled in both areas.  You’ll want to ask him or her about specific experience and would be well-served to take a look at the attorney’s track record and what others have to say about their experience working with him or her.

Other Things to Consider When Choosing a Probate Lawyer

Another important consideration may be what other areas of expertise that particular attorney brings to the table.  For example, if the decedent is leaving behind a business, you may want to find a probate lawyer with specific experience in dealing with these types of estates.  If the estate includes a lot of real estate, then you might want a lawyer with a history in property law.

Because the outcome of probate is so important, hiring the right lawyer can make a huge difference.  Take a thoughtful approach and ensure that you are working with someone who truly understands and can represent your needs.

How to Find a Probate Lawyer in Sacramento or El Dorado Counties

There are a number of ways to compile your list of potential probate attorneys:

• Use your search engine – Try typing in “probate attorney,”  “Sacramento County,” or “El Dorado County” and any other specific terms that will help narrow down your choices.
• Get recommendations – If you know someone who has been through the process, ask them about their experience with their probate lawyer.  Would they recommend him or her?  Why or why not?
• Contact the California bar association.  They can direct you toward attorneys who are in good standing.

You can pare down your list of probate lawyers by gathering other information.  Look at their web sites and learn about their backgrounds.  How long have they been doing the job, as more experience is generally preferable.  What are their credentials?  What do former clients have to say about them?

And finally, you may want to sit down with a couple of probate lawyers in the Sacramento area to get a feel for their personal interaction style and to determine if you think you will work well together.  After all, probate can be a stressful process, and you want someone who can balance the legal aspects and emotional aspects of what you’re going through.  You want someone who is a good communicator, can break the process into understandable pieces and will keep you informed of progress, and especially someone who will take the time to explain things to you in a way you can understand.  You also want someone who is going to be responsive to your concerns and questions and returns phone calls promptly.

If you would like to get started with the process, we invite you to come meet with a skilled Sacramento County probate attorney here at The Chubb Law Firm for a complimentary consultation with the mention of this article.  Simply call (916) 241-9661 to schedule your appointment.

When a will is “contested” that means that it is being challenged for some reason.  Fortunately, heirs can’t simply overturn your will because they’re not happy with it.  Instead, they have to show a legal reason that the will itself is invalid.  If it is found to be invalid, then the administration process changes dramatically for all involved.

Who Can Contest a Will

As mentioned above, a will can’t just be contested because someone doesn’t think you left him or her enough or to create more drama at an already difficult time.  Instead, it must be shown that there is a valid reason for contesting.  Those who can contest a will during the administration process include:

• Someone named in the will who feels he or should have inherited differently
• Someone not named in the will who thinks he or she should have been

One way to determine if a person has standing to contest the will is to determine if he or she would have inherited if you had died without one and your estate had gone into probate.

Reasons to Contest a Will

Simply being unhappy with your share isn’t enough for a court to consider a request to contest a will.  Instead, specific problems must be shown.  For example:

• The testator was unduly influenced
• The testator did not have the mental capacity to make binding decisions
• There was a mistake in the will
• The will constitutes fraud or was created fraudulently

If any of these things are found to be true, then all or part of the will can be voided.  If the entire will is considered invalid, then its administration is governed by California’s intestate laws.  If only part of the will is questionable, then that portion of the estate can be added to the residuary estate and dispersed as the will otherwise states.

No Contest Clauses

Many estate planning clients work to improve the desired outcome of their wills by including “no contest” clauses.  These typically state that anyone attempting to contest your will is simply disinherited.  That may be enough of an incentive to stop someone from interfering with your wishes out of their own sense of greed or mischief.  Working with a local Fair Oaks wills and trusts lawyer will ensure that you are following the applicable laws for our state.

Fair Oaks, CA (2/15/12)- It’s a common fear for any parent: suddenly passing away and having their child inherit their money outright at age 18, before the child is mature or responsible enough to handle such a large sum of cash.

That’s why many parents leaving a significant inheritance to their children choose to place their money in a trust, which helps to ensure their money is not lost or wasted on things like fancy cars, luxury items, gambling, foolish spending or expensive drug habits. Leaving an inheritance in an asset-protected way also helps to ensure it’s not lost to lawsuits or a messy divorce.

Whitney Houston may have had the same concerns about leaving money outright at age 18 to her own daughter, Bobbi Kristina, who recently has been photographed using drugs, partying and acting erratically.

It’s likely that Houston took some form of precaution to protect her daughter in the event of her untimely death, but when it comes to money Houston recently inherited from her father, Sacramento estate planning attorney, Heather Chubb, warns it may be too late to keep it from Bobbi Kristina’s hands.

“There’s a good chance that Whitney didn’t have time to plan for the money that she was just awarded from her father’s estate, “ says Chubb. “If that is the case, the money will likely end up in the probate court and will eventually be awarded outright to Bobbi Kristina, who is her surviving heir,” she adds.

Chubb believes that this oversight could prove very dangerous to Bobbi Kristina, who may not be stable enough to handle such a large sum of money following her mother’s death.

“Bobbi Kristina is in a very fragile state and she’s very young. There are people that might try to take advantage of that and get close to her because of the money she’s about to receive.  It also makes it that much harder to avoid situations that got her parents in trouble in the past,” says Chubb.

Chubb believes there is a lesson in Houston’s death for all parents to take precautions and protect their money in such a way that it would not hurt their children in the event of their untimely death. She says legal tools such as living trusts are great ways to place age restrictions and some oversight on family wealth to ensure that it lasts.

For more information about concerns regarding Whitney Houston’s estate or about Sacramento attorney Heather Chubb, please visit www.chubblawfirm.com or call 916.241.9661.

The Real Reason People Choose Prenuptial Agreements

One of the original uses for this type of agreement is one that prenup lawyers still see on a regular basis: people getting married for the second or subsequent time.  When entering a second or later marriage, it’s likely that the parties involved have their own assets and possibly even children that resulted from the earlier relationship.  They are often looking to make sure that those things accumulated from the first marriage will be inherited by their biological children rather than the new step-children.

For example, a widowed mother of two adult children might marry a divorced man who has a grown child of his own.  Their prenuptial agreement could state that certain assets from each of their previous marriages will rightfully pass only to their biological offspring.  Each of the partners may also come to the marriage with enough financial security that it is unnecessary to inherit the new spouse’s estate.

This idea has expanded as our culture has shifted to one where many people get married for the first time later in life.  Each spouse may already have his or her own successful career, personally owned property, and other assets that they want to ensure remain theirs.  The high divorce rate is certainly another cultural factor that comes into play, with many couples having seen well-intentioned friends end up going through painful divorces in which they lost their assets.

Will the Prenup Be Upheld?

A good prenup lawyer in Sacramento County is probably your best ally in creating a prenuptial agreement that holds up in court.  In fact, it is preferable for each spouse to hire a separate lawyer to represent his or her interests.  By doing this, you increase the likelihood of it being upheld later, too, as it’s less likely for one person to claim that he or she was misled.  The parties need to be honest when they disclose their assets, too.  If it appears that one was hiding assets from the other, this can definitely call the prenup into question.

It needs to be clear that both parties have entered into the prenup freely and with good intentions.  It’s recommended to meet with your Sacramento prenup lawyer well in advance of the wedding date, as that helps to strengthen it in the eyes of the court.  It needs to be signed by both partners, and all involved should know that a court will possibly overlook parts of the prenuptial agreement that attempt to lay out custody or child support agreements, as these things may need to be determined by a court following standards for what is in the best interest of the child.

However, the process is necessary to ensure the estate is administered according to the will, or in the absence of a will, according to the California probate code.  The process also helps to ensure that the decedent’s debts and outstanding obligations are paid to creditors, the state and the IRS.

Fortunately, however, not all assets are subject to the expenses and delays of the probate court following the death of a loved one.  Here is a brief overview of some assets that may avoid oversight from the probate courts:

• Property held in joint tenancy
• Other jointly own assets
• Assets with named beneficiaries such as insurance policies, IRAs and annuities
• Assets placed in a living trust
• Informal trust accounts, also referred to as Totten Trusts or payable on death (POD) accounts
• Banking and investment products, such as savings, checking accounts, CDs, and brokerage accounts with a Transfer on Death (TOD) or Pay on Death (POD) beneficiary
• Your spouse’s share of the community property you own together

Keep in mind that while these assets generally are not subject to probate, there may be instances when they will need to go before the court.  This typically happens when a beneficiary is not properly named or is no longer alive at the time of the deceased’s passing.

The best thing to do if you have questions about which assets may or may not go through the probate court following the death of a loved one is to contact an experienced Sacramento or El Dorado County probate attorney. Here at the Chubb Law Firm, we are dedicated to providing individuals and families in Northern California with the information and compassionate guidance they need during a time of loss.  To schedule a complimentary appointment at our Fair Oaks estates and probate law firm, please call 916.241.9661.

There are multiple reasons that this happens, and while your estate planning attorney in Sacramento will work within all applicable local and state laws, there may be some limitations caused by any real or suspected impairment.

Confusion

One of the obvious reasons not to put estate planning off until after the onset of a mental decline is that you simply might not be able to make the choices you would have truly wanted.  Forgetfulness, irritability, and other symptoms of memory loss can all get in the way.  It is easier to overlook someone, to forget about an account, or even to have unclear feelings and motivations come into play.

Resentment

Even if you are able to lay out your decisions just as you would like them, that doesn’t mean that others will be happy or accepting of them.  If a family member feels that he or she has been slighted, it’s not uncommon for him or her to contest your decisions, claiming that you were not thinking clearly due to mental decline.  These types of claims can derail your entire estate plan and cost the estate and other heirs a lot of time and money.

Asset Protection

Another very important reason to work with an estate planning attorney as early as possible is that it can save you a lot of money that can become your legacy to those you leave behind.  A lawyer here in Sacramento, for example, will have insight into how best to create appropriate trusts that can protect your assets should you later need to move to a nursing home or other assisted living facility.  For the purposes of Medi-Cal (Medicaid), for example, these trusts must be set up a minimum of five years before you need long-term care or else they can be depleted for living costs.

How to Get Started

Your estate planning attorney will be able to help you with how best to outline your wishes and to protect your assets.  Finding a skilled lawyer with the right expertise should be one of your first steps.  Next, identify your assets, both those things that have monetary value, and those that have sentimental value.  You’ll want to determine who should inherit them.  This can extend to everything from family jewelry to insurance policies and bank accounts.

In addition to wills and trusts, estate planning should also include considerations for your medical care and financial wellbeing in the future.  You will want to name powers of attorney for your financial and medical decisions.  The estate planning attorney will then help you to set up the correct documentation to get your wishes set before it’s “too late.”

This culture of silence extends to one’s own children.  Elder law attorneys in Fair Oaks, as well as other places in Sacramento County, often find that adult children of elderly parents assume that finances are fine because their parents don’t come to them when issues do arise.  It’s not just a matter of pride, but a matter of “this is the way things are.”  By the time financial concerns are uncovered, they can already have devastated the parent.

So, how do you know if your parents are struggling financially?  There are some clues to watch for if you don’t feel that Mom and Dad are being upfront about their financial difficulties.

Things to watch for:

• Calls from creditors.  This can be a big clue that there is an issue.  You may overhear these calls, find them left on the answering machine, or even notice their numbers on your parent’s phone logs or caller ID.  These calls can also come from individual businesses or credit card companies looking for payment.
• Forgetfulness when it comes to money.  If your parent seems surprised to find no money in his or her wallet, it can be a sign that money is getting overlooked.  Other indicators can be finding uncashed checks around the house.  As parents get older, banking can become more physically difficult and it is easier to become distracted or forgetful when it comes to taking care of financial obligations.  Recognizing this can help prevent major problems before they develop.
• Unopened mail.  Bank statements, Social Security payments, and other financial documentation that comes in the mail is an important part of keeping finances in order.  If your parent has stacks of unsorted or unopened mail in the house, it may mean that he or she is not taking care of bank accounts or bills.  Also check the mail for signs that Mom or Dad is being taken advantage of by scams that present themselves as “opportunities.”
• They actually are talking about money.  While many older people don’t want to talk about money as described above, there may come a time when things are getting tight and your parent wants you to notice without him or her coming right out and saying there’s a problem.  If your parent talks more than usual about the rising cost of living or is suddenly unable to do typical activities, such as going out with friends, it may be a sign that there is a financial struggle going on.

An estate planning attorney in Sacramento can help your parent stay on track and on target with his or her finances, even setting up systems that can keep things working smoothly should physical or mental decline become an obstacle down the road.  There are a number of issues that pertain specifically to estate and elder law that have been created to help the older generation live comfortably in their golden years.

But what happens in situations where two people are not married but are living together?  This scenario isn’t at all uncommon.  While we often think of it as being an arrangement for younger people who simply don’t want to “tie the knot,” there are actually plenty of reasons that more mature couples decide to cohabitate without becoming legally married.  Widows and widowers may choose the companionship of a new partner but prefer not to give up survivor benefits by getting married, for example.  In the case of same-sex couples, being married may not even be an option at all!

What often happens is that one partner moves into a home already owned by the other.  No one thinks much about the fact that the new partner’s name isn’t on the deed or title to the house.  Unfortunately, this means that that partner has no rights to the property should the legal owner die.  Even if the couple lived together for decades, the surviving partner can be forced to leave the home so that the rightful heirs can do as they please.

Estate planning attorneys in Sacramento and El Dorado Counties often work with these types of unmarried couples to create a life estate.  It allows for the surviving partner to live out the rest of his or her life in the home.  There are several reasons that this type of arrangement is useful:

1. Each partner may have adult children with a desire for each partner’s estate to go only to his or her respective children.
2. Family members who do not approve of the relationship can become vindictive, forcing the surviving partner out of his or her home.  The life estate prevents this from happening.
3. Even those with good intentions become emotional or have financial concerns, and the temptation to sell or live in the parent’s house may lead to the other partner’s eviction.

Each situation is unique, of course, but an estate planning attorney here in Sacramento with experience in life estates will be able to help you determine what is the most reasonable course of action for yours.  When you consider the peace of mind you’ll experience, a life estate isn’t all that expensive to set up, and it can protect you or your partner for many, many years to come.

While it seems that nearly every aspect of Steve Job’s death has been discussed, right down to his last words (“Oh, wow.  Oh, wow.  Oh, wow.”), there isn’t a whole lot of information on what became of his truly sizable estate.  As someone who lived very much in the public spotlight, Jobs and his trust attorneys were able to find ways to protect the privacy of Jobs and his heirs.  One of the biggest ways this was accomplished was through the use of trusts.

Most of us have seen the movie scenes where the super-rich uncle’s will is read to a roomful of mourning and/or greedy relatives. The document becomes public, and pretty much anyone from California and beyond can have access to it.  This is actually similar to the real life probate process.  If you pass away without a trust in place, your affairs will displayed publically in court for all the world to see.

That is why even people without billions of dollars in cash and assets can still benefit from the privacy aspects of a trust.  Placing the assets you do have into a trust avoids the need for them to go through probate and generally allows them to be dispersed for your intended purposes much sooner.

That “intended purposes” part is pretty important, too.  A good estate attorney will help you to analyze your goals for your estate and then create trusts that aim toward those goals.  Some considerations might include:

• Do you want your inheritance to stay with your bloodline?
• Are there specific charitable causes you want to support?
• Is the money earmarked for specific uses, such as college for your children?
• Do you have pets that need to be provided for through a pet trust?

Another major consideration for having an estate planning attorney set up the appropriate trusts is that it can save an incredible amount in taxes. In fact, it is suspected that of Steve Job’s projected $6-billion-dollar estate, absolutely none of it will go to pay for estate taxes.  For the non-billionaires among us, trusts can protect the money in other ways, as well, such as avoiding nursing home costs that often deplete an estate before Medi-Cal (Medicaid) assistance picks up the bill.

A local Sacramento –area wills and trusts attorney will work with you to determine what kinds of trusts might be most beneficial for your situation.  While pretty much no one is planning for a Steve Job’s sized estate, setting up trusts can protect the privacy, intentions, and bottom line of even the middle class.

Let’s say that a couple in California wants to leave their beloved vacation home to their children.  They see this as an act of love, providing future generations the opportunity to gather there and continue on the traditions that were started while the couple was still living.  It’s a beautiful, romantic, and idealized way to look at passing on the property.

Unfortunately, the generations that follow may have less interest or ability to keep and maintain the property than the original owners.  Once the vacation property has been passed on, it is the heirs’ responsibility to maintain it, pay annual property taxes, etc.  In many cases, the heirs may simply not be able to afford this.

And what about those heirs that live too far away to enjoy the vacation property regularly?  Should they be held just as responsible for its upkeep as siblings and cousins who live nearby and are able to use it on a regular basis?  What kind of alternative might be available for them?

Working with a wills and trusts lawyer can offer great insight into the options available…and there are options.  For example, the original couple may choose to place the property into a trust, meaning that a trustee would manage the home, and that (as much as possible), maintenance, taxes, repairs, etc. would be paid for out of the trust.  It may even be possible for some of the heirs to be “bought out” of their share by using funds from the trust.

Another advantage of placing the vacation property into a trust is that it can help if there are family tensions at play.  The trustee can be someone outside of the family whose only interest really is to preserve the property and the trust in an appropriate manner.  He or she may even determine that the property can be rented out to generate income if the trust is having trouble paying for maintenance.

It is possible that some members of the family will simply be uninterested in the vacation property.  For this reason, the wills and trusts lawyer can set up an exit strategy that allows some heirs to purchase the shares of others, even using other assets from the estate.   It’s also not unusual for the third or subsequent generations to not have the same emotional ties to it as earlier generations.  In preparation for such an event, the trust can include an exit strategy that allows for the sale of the property with proceeds going to living heirs.

Vacation properties can be a little tricky when it comes to wills and trusts administration, so choosing an Sacramento lawyer who has expertise in dealing with this type of situation can make a big difference in ensuring that your wishes are clear.

Have questions about the best ways to pass your vacation home down to the next generation? Give our Fair Oaks estate planning law firm a call at (916) 241-9661 and ask to schedule a free Peace of Mind Planning Session ($750 value) with the mention of this article (limited to first 10 callers per month).