Get an Estate Planning Attorney Long Beach CA to help with undue influence

 

Title: The Will or Trust can be set aside and revoked because of Undue Influence

A Long Beach CA Estate Planning Attorney explains that undue influence is essentially a term whereby a Will or Living Trust or other Estate Planning Document could be ruled to be invalid due to the actions of another person on the testator or person who made the Will or Trust. An Estate Planning Attorney Long Beach CA states that undue influence is a term in Estate Law which basically means that the person who signed the Will or Trust which ultimately gives property to somebody else was not done of his own free will.

 

Use of the words “duress,” “menace,” and “undue influence” seems redundant. Most modern cases treat these terms as synonymous and refer only to undue influence.  A Long Beach CA Estate Planning Attorney shares that the definition of undue influence is as follows: (a) “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. Thus, undue influence, explains an Estate Planning Attorney Long Beach CA, is  a factual issue that will differ depending on the facts of each particular case.  In determining whether a result was produced by undue influence, all of the following shall be considered:

The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability explains an Estate Planning Attorney Long Beach CA.

 

Watch a Long Beach CA Estate Planning Attorney speak about Undue Influence in Wills

Another factor to look at with undue influence would be the influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification states the Estate Planning Attorney Long Beach CA.

A third factor to determine if there is undue influence would be the actions or tactics used by the influencer states a Long Beach CA Estate Planning Attorney. Evidence of actions or tactics used may include, but is not limited to, all of the following: Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep; Use of affection, intimidation, or coercion; Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes; The equity of the result. Regarding undue influence, evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship. Thus, explains Estate Planning Attorney Long Beach CA there are many factors  to determine if there is undue influence.

However, you should not that evidence of an inequitable result, without more, is not sufficient to prove undue influence. Thus, explains  a Long Beach CA Estate Planning Attorney, just being unhappy about who gets what is not sufficient to show undue influence explains the Estate Planning Attorney Long Beach CA.

 

So what exactly does undue influence mean asks the Estate Planning Attorney Long Beach CA? Undue influence is conduct that subjugates the testator’s will to the will of another and causes the testator to choose a disposition of property that he or she would not have chosen in following his or her own inclination or judgment. In other words, explains the Long Beach CA Estate Planning Attorney, undue influence, then, is the legal condemnation of a situation in which extraordinary and abnormal pressure subverts independent free will and diverts it from its natural course in accordance with the dictates of another person.
Thus, the pressure on the testator must have been so overpowering that he or she was not a free agent when the will was made. Therefore, undue influence, or duress is not easy to prove. However, if somebody did actually perform acts rising to the level where the testator was under undue influence, a Long Beach CA Estate Planning Attorney states you should take the matter to Court in order to get what is fair.

A Living Trust Attorney California can see if testamentary capacity is a problem

 

 

Title: Do you have the mental state and testamentary capacity to make a Trust or a Will and do you need help from a Living Trust Attorney California

When making a Will, states a Living Trust Attorney California,  you must have the Capacity to know what you are doing. For example, if your uncle wants to make a Will, but he cannot remember a lot of things and some people say he has dementia, does he have the testamentary capacity?  Can he still make the Will?

 

First, explains a California Living Trust Attorney, testamentary capacity is the mental state of a person making the estate document and whether that person has a sufficient mental state in order to make the estate document.

 

The Living Trust Attorney California indicates that this is a testamentary capacity issue. If he does not have the capacity, then the Will could very well not be valid. Testamentary capacity deals not just with Wills, but Trusts and any other Estate document such as Durable Powers of Attorney and Healthcare Directives and Codicils and Amendments.

 

Watch a California Living Trust Attorney discuss testamentary capacity

 

The question to ask states a Living Trust Attorney California is how do you tell if somebody has testamentary capacity?  A determination that a person lacks testamentary capacity to do a certain act must be supported by evidence of a deficit in at least one of the following mental functions and evidence of a correlation between the deficit and the decision or act in question: alertness and attention; information processing; thought processes; and the ability to modulate mood and affect.  A California Living Trust Attorney states that this particular test for lack of testamentary capacity is not entirely clear, but at least gives a basis upon which to begin to see if the person lacks testamentary capacity or has testamentary capacity.

 

A Living Trust Attorney California states  that a deficit in any of the specified mental functions is relevant only if, by itself or in combination with other mental function deficits, it significantly impairs the person’s ability to understand and appreciate the consequences of his or her actions with regard to the type of act or decision in question. The mere diagnosis of a mental or physical disorder is not sufficient by itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act. Thus, just because somebody might have dementia or some other psychological condition, does not by itself mean that they lack testamentary capacity.

 

So what criteria must be shown to show asks a California Living Trust Attorney, in order to show that a person has testamentary capacity? Every adult (including an emancipated minor) of sound mind can make a will. A person is not mentally competent and does not have testamentary capacity to make a will if, at the time the will is executed, either of the following is true: The testator does not have sufficient mental capacity to: Understand the nature of the testamentary act; Understand and recollect the nature and situation of his or her property; or remember and understand his or her relations to his or her living descendants, spouse, parents, and those whose interests are affected by the will.  Alternatively, another test to determine that a person does not have testamentary capacity is that the testator suffers from a mental disorder involving delusions or hallucinations that cause the testator to choose a disposition for his or her property that he or she would not have chosen but for the delusions or hallucinations.

 

A Living Trust Attorney California states that the above tests will tell most of the time whether somebody has testamentary capacity. However, there Is  another test for testamentary capacity. There must be an ability to communicate.  This provides that a person lacks capacity to make a decision (presumably including testamentary decisions) unless the person can communicate, verbally or by other means, all of the following: (a) The rights, duties, and responsibilities created by or affected by the decision; (b) The probable consequences for the decisionmaker and, when appropriate, the persons affected by the decision; and (c) The significant risks, benefits, and reasonable alternatives involved in the decision. Therefore, explains a California Living Trust Attorney if there is testamentary capacity issues, you certainly must take care of it prior to when the Will or Trust is made.

Get a Living Trust Lawyer to Help with your Estate Planning

Title: Get a Living Trust Lawyer to help with your Estate Planning

Generally, states Brian D. Lerner, Living Trust Attorney Long Beach CA, a Last Will and Testament will result in taxable consequences the moment that the property is bequeathed to the beneficiary. However, with a Living Trust explains Brian Lerner, Living Trust Lawyer, it is possible in certain circumstances that the taxable consequences can be deferred when one of the settlor’s dies and a large part of the estate goes into a survivors trust states a Living Trust Attorney.

 

Another item to be avoided regarding Last Will and Testaments explains the Living Trust Lawyer would be what is known as a Joint Will. A joint will is a single testamentary instrument constituting or containing the wills of two or more persons, and jointly executed by them as their respective wills explains the Living Trust Attorney. When one of the testators to a joint will dies elaborates the Living Trust Lawyer, the will is admitted to probate as the separate will of that person states the Living Trust Attorney Long Beach CA. When the other testator to the joint will dies,  the same instrument is again admitted to probate in a separate proceeding. The joint will offers no discernible advantage over separate wills and creates additional problems in actuality claims Brian Lerner, a Living Trust Attorney. Even if the drafter negates the existence of a will contract, a joint will can still result in unexpected consequences. For example, explains the Living Trust Lawyer, a joint will executed by both spouses or registered domestic partners may constitute an agreement transmuting joint tenancy property into community property whether or not it includes or is executed according to a will contract indicates Living Trust Attorney Long Beach CA. Under a Last Will and Testament, transmuting property would be changing the character of the property which many people do not want as noted by Brian Lerner, Living Trust Attorney.

 

Brian D. Lerner, Living Trust Attorney Long Beach CA states that the Last Will and Testament should be drafted with care and with taking into account all of the various factors of an Estate Plan. The last thing you want to walk away with explains Brian Lerner, Living Trust Lawyer, is to believe that in most cases a simple Last Will and Testament will suffice for your entire Estate Plan cautions the Living Trust Attorney. A Living Trust Attorney Long Beach CA can see all the various options and what must be done to protect you and your family.

 

 

Title: Should you prepare your Last Will and Testament or get the help of a Last Will and Testament Attorney?

Many times a person will think they have a simple Estate and want only a Last Will and Testament. Brian D. Lerner,  Last Will and Testament Attorney, states this is not only the case. In fact, sometimes, somebody who does only a Last Will and Testament as their entire Estate Plan will come to find out that they might have to pay many thousands of dollars in Probate and sometimes a Last Will and Testament as the only Estate vehicle will make it so that much more estate and death taxes have to be paid. A Last Will and Testament Lawyer will most likely advise you on the different options for trying to decrease the tax burden on your family when you pass away.

 

Brian D. Lerner, Last Will and Testament Lawyer states that you should most definitely get an estate attorney who is familiar with the Last Will and Testament and what provisions mean what to whom. For example, a Last Will and Testament might give everything to two daughters. However, the client might have notified the attorney that the client will be getting married in two weeks. In that case, a Last Will and Testament might not be able to be complied with due to future community property concerns. Thus, on the Last Will and Testament, the Last Will and Testament Attorney should have either excluded community property in the future, or should have had the future spouse enter into an agreement to essentially agree that community property will still go to the daughters.

 

The Last Will and Testament usually will not be all that is necessary to complete the Estate Plan. There are other documents clarifies Brian D. Lerner, Last Will and Testament Attorney. Thus, do not fall into the trap thinking all you need is a Last Will and Testament and everything else is not necessary. One item that should not be done with a Last Will and Testament is to enter into a Will Contract. Brian Lerner, Last Will and Testament Lawyer explains that a Will Contract is essentially an agreement between two or more people that the Will will not be revoked or altered. Will contracts also have problems many times with taxes and gift taxes that are unforeseen.  

It is difficult to  administer this agreement and hard to enforce claims Brian D. Lerner, Last Will and Testament Attorney. Therefore, a Last Will and Testament should be able to be changed in the future through Codicils or subsequent Wills which revoke the prior Will in its entirety. An alternative to a Will Contract in regards to the Last Will and Testament might be a revocable Living Trust. Brian D. Lerner, Last Will and Testament Attorney states this might also have less tax consequences as well. Because of the complexity of the laws dealing with Wills, you should get a Last Will and Testament Lawyer to help. Additionally, the Last Will and Testament Attorney can discuss all the other types of Wills that you might qualify for under the law.

 

 

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Title: Get an Estate Planning Attorney Long Beach CA and avoid the nightmares of Probate

 

An Estate Planning Attorney Long Beach CA gives some insight as to why you would absolutely want to avoid Probate if you could and why you do should do everything you possibly can to do a Living Trust, rather than go to Probate.

 

Probate avoidance can be desirable in California for several reasons states a Long Beach CA Estate Planning Attorney. Notably, formal court-supervised administration of a decedent’s estate tends to be slow and expensive. An Estate Planning Attorney Long Beach CA states not only is it slow and expensive, but generally, people do not like to go to Court  if it can be avoided. As a practical matter, the minimum period for a probate proceeding is 6 months. However, a Long Beach CA Estate Planning Attorney states this is after the actual court battle begins and the reality is that it would take an Estate Planning Attorney Long Beach CA much longer to move through the system.

 

Costs include court filing fees, probate referee appraiser fees, the personal representative’s commission (unless waived), and attorney fees that are usually established by a statutory fee schedule that, depending on the circumstances, may not be fair to the estate or the attorney.  As a general rule, states a Long Beach CA Estate Planning Attorney, it is highly unlikely that if you are not an attorney that you will try to start, argue and go forward with a Probate proceeding. You would have to hire a Los Angeles Estate Planning Attorney to help. In actuality, you would also have to hire an Estate Planning Attorney Long Beach CA to prepare a Living Trust, but that is far less expensive and by doing so, it would in all reality, avoid probate.

 

The Long Beach CA Estate Planning Attorney says that a revocable trust can sometimes be administered fairly quickly and at a nominal cost if, e.g., the trust has few assets, no tax problems, and a trustee who is also the sole beneficiary. Of course, an Estate Planning Attorney Long Beach CA can also prepare the Living Trust with multiple assets, dual or more co-trustees and numerous beneficiaries. Long Beach CA Estate Planning Attorney states that while a bigger estate takes a longer time to prepare, it is exponentially longer in Probate.

 

Long Beach CA Estate Planning Attorney states that another potential benefit of avoiding probate is to maintain family privacy. The court file of a probate proceeding discloses extensive information about a decedent’s assets, debts, and disposition of the assets. The court file is a public record, easily viewed by anyone willing to go to the court clerk’s office and make a request. In contrast, information in a revocable trust can be kept confidential as long as the beneficiaries and next of kin cooperate. In fact, a Certification of Trust can be made, which the Estate Planning Attorney Long Beach CA states is a summation of some of the provisions of the Living Trust, but it by no means discloses what beneficiary will get what asset, etc.

 

Although there are other probate-avoiding devices, few are well suited to the task of providing for a coordinated disposition of all of a decedent’s property. For example, it is extremely difficult to use joint tenancies to equally distribute all of a client’s property among multiple beneficiaries and also provide for distributions to alternate beneficiaries states a Long Beach CA Estate Planning Attorney.  Still, revocable trusts are not appropriate in all situations, and planners have a duty to consider appropriate options. However, if you can do an Estate Planning Attorney Long Beach CA confirms it is  much more desirable than going into Probate.

 

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Trust Attorneys Long Beach CA can help you draft a Revocable Living Trust

 

There are primarily two different kinds of Living Trusts. They would be revocable living trust and irrevocable living trusts. Trust Attorneys Long Beach CA will state that a very large portion of Living Trusts are Revocable Living Trusts. A Wills Attorney California may also be able to help with the drafting of the Revocable Living Trust, but would be more apt to help with the drafting of the Last Will and Testament.Trust

 

Trust Attorneys Long Beach CA states that the objective of estate planning is to formulate and implement plans for transferring someones property. The typical person has worked many years to acquire their property both real and personal, and Trust Attorneys Long Beach CA as well as Wills Attorney CA will share that they want to make sure it goes to whom they want. In fact, what drives revocable living trusts even more is to not place a hardship on the children or spouse when somebody dies. The last thing a spouse wants to do, states Trust Attorneys Long Beach CA is to cause hardship on the relatives because it was not properly designated as to who would receive what.

Watch Wills Attorney CA talk about Revocable Living Trusts

To do this, Trust Attorneys Long Beach CA  and Wills Attorney CA must first obtain information on the your  objectives and educate you about the realistic options for accomplishing them. Sometimes, claims Trust Attorneys Long Beach CA and/or Wills Attorney CA, the client will want something that is simply not possible or realistic. The Wills Attorney CA shares that it is usually possible to obtain a particular kind  of Revocable Living Trust that basically and most reasonably considers the objectives of the Client, but does it in a manner that is legal and enforceable.

 

Client objectives vary, states Trust Attorneys Long Beach CA, but whatever they are, the client will want them to be achieved efficiently and with a minimum of taxes, expenses, delay, and inconvenience. This can be a tall order sometimes depending on exactly what the client wants, claims the Wills Attorney CA, but even if the estate plan involves inter vivos gifts, the primary transfer usually occurs after death. This is the very reason that it is necessary to create the revocable living trust in the first place.

 

Trust Attorneys Long Beach CA are commonly used in California as tools for transferring property at death. The Wills Attorney CA states that a revocable trust does not include a “dry” trust with no assets or only nominal assets. The primary objective of a revocable trust states Trust Attorneys Long Beach CA is usually to distribute the settlor’s property at his or her death without the need for a court proceeding to administer the client’s probate estate.  This alone claims Wills Attorney CA and Trust Attorneys Long Beach CA is a great reason to have prepared a revocable living trust.
This objective is achieved by creating a trust and transferring property to it. You can use Trust Attorneys Long Beach CA and/or a Wills Attorney CA to advise you on how to ‘fund the Trust’. On the client’s death, the property is deemed owned by the trust rather than by the client for the limited purpose of determining whether court administration is required. The trustee or a successor trustee then administers the trust as provided in the trust document. This process may involve little more than transferring trust property to a single beneficiary, or it may involve continued administration of property in sophisticated irrevocable trusts that continue to operate more or less indefinitely. However, Trust Attorneys Long Beach CA states if it is prepared correctly that there should be no reason for Probate and the Living Trust can be administered properly and hopefully without Court intervention

What is reasonable compensation for the Trustee?

The court may consider the following factors in determining reasonable compensation (see Cal Rules of Ct 7.776):

  • The gross income of the trust;
  • The success or failure of the trustee’s administration, as measured, e.g., by the growth in value of the investments or less tangible measures such as smooth administration (absence of disputes, distributions made promptly, no surcharges requested);
  • Any unusual skill, expertise, or experience that the trustee has brought to the position, e.g., investment management expertise;
  • The “fidelity” or “disloyalty” shown by the trustee (see §9.32);
  • The amount of risk and responsibility assumed by the trustee (personal liability), as measured, e.g., by negotiation of oil leases or management of a large office building;
  • The time that the trustee spent performing trust duties;
  • The custom in the community, including the compensation allowed to trustees by settlors or courts and the fees charged by corporate trustees; and
  • Whether the work was routine or required more than ordinary skill and judgment.

For application of these factors, see Estate of McLaughlin (1954) 43 C2d 462, 467; Estate of Gump (1982) 128 CA3d 111; Estate of Nazro (1971) 15 CA3d 218. See alsoCagnolatti v Guinn (1983) 140 CA3d 42, for the general proposition that the court may consider the trustee’s management of the trust property in determining the appropriate compensation.

Trustee’s Fees

What can a Trustee get for fees for administering the Trust?

 

When the governing instrument specifies the trustee’s compensation, the governing instrument prevails, although the court may allow greater or lesser compensation in some circumstances. Prob C §15680. Unless otherwise specified, trustee fees in the governing instrument typically cover ordinary services.

Compensation for extraordinary services, therefore, is usually in addition to that specified in the governing instrument and must be specifically requested.

When the governing instrument is silent, Prob C §15681 provides that the trustee is to be paid an amount that is reasonable under the circumstances.

For unsupervised trusts that do not specify the trustee’s compensation (i.e., do not specify “ordinary” compensation), the distinction between ordinary and extraordinary trustee fees does not have any particular legal significance because all compensation for such trusts must be reasonable under the circumstances, regardless of whether the services performed were ordinary or extraordinary.

The Safety Deposit Box

If the Safety Deposit Box (the Box) is part of the estate, then once the decedent dies, it must be opened and inventoried by the Trustee in front of a bank witness.

If the box is held in joint-tenancy, then the surviving tenant can then open the box and take the contents.

However, who exactly owns the contents in the safety deposit box?

 

The following persons, and no others, are entitled to receive
from the bank a copy of the inventory:
   (a) An executor of the decedent's will.
   (b) The administrator of the decedent's estate.
   (c) The attorney for the executor or administrator.
   (d) A tenant of the safe-deposit box.
   (e) Any heir of the decedent or beneficiary under the decedent's
will.
   (f) Any person whom the superior court having jurisdiction by
order directs should be allowed to obtain a copy of the inventory.

Trustee’s duty to the beneficiary

California law has long recognized that trusts describe a fiduciary “relationship” between the person holding legal title to property for the benefit of another and the beneficiary. See Estate of Shaw (1926) 198 C 352, 360. Every trustee has one mission—to protect the beneficiary. In this relationship, the benefits belong to the beneficiary and the burdens to the trustee. See Moeller v Superior Court (1997) 16 C4th 1124, 1134. On the duty to administer the trust according to its terms, see §§2.22.3. On the duty to account, see §§2.42.12. On the duty of confidentiality, see §§2.132.17.

The standard of care to which the trustee is held will determine whether the trustee has adequately carried out his or her duties. Failing to meet any duty owed to the beneficiary gives rise to a breach of trust and potential liability for the trustee. Prob C §16400. Some commentators have suggested that the appropriate standard of care is implied in each of the duties owed by the trustee to the beneficiary. The better analysis first establishes the appropriate standard of care arising out of the particular relationship between trustee and beneficiary, against which the discharge of trustee’s duties is to be measured. See §2.49.

The trustee must maintain a minimum standard of care in discharging his or her duties. The distinction between standard of care and duties is often ignored in analysis of breaches of trust. A trustee’s standard of care is not static but varies depending on the level of expertise the trustee brings to the office. Expert trustees are held to a higher standard than nonexpert trustees. See Prob C §16014 . Proper analysis starts with recognition of the relationship between trustee and beneficiary, subject to permissible, variant terms of the trust instrument. See Prob C §16040(b).

The discharge of a particular duty by a lay trustee lacking any particular expertise may meet the basic standard of care under Prob C §16040(a)  but may be inadequate if the trustee brings to office a particular expertise or the trust instrument requires enhanced performance. In the latter variant, the intent of the settlor is a primary factor in determining the applicable standard of care.