Probate, Estate Planning and Trust Law
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San Fernando Valley Probate & Estate Administration Law Blog

New estate protection bill inspired by the late artist Prince

Woodland Hills residents have likely heard for years how important it is from them to not put off their estate planning. The risk one assumes by not having any certified documentation outlining his or her final wishes is that a veritable ‘open season’ may ensue among those who claim to be interested parties to his or estate. In some cases, those interests may go beyond the tangible assets included in an estate. If it also contains properties, original works, or even name recognition that could be of value, then those associated with the estate may also want to try an exploit them, as well. Without the proper estate planning documents, there may be little that can be done to stop them from doing so.

Currently, 17 states have laws on their books prohibiting people from profiting off of an apparent association with a decedent without permission. Minnesota may soon join their ranks. Legislation was just recently introduced to the state’s House of Representatives that would give added control of a person’s likeness, name, voice, and image to his or her estate for 50 years following his or her death. The bill is has been formerly named ‘The Prince Act’ after the later rocker who passed away late last month. His case alone may serve to demonstrate the need for such legislation. The musician apparently left no will, and since his death as many as 700 different people have come forward claiming a right to his estate.

Business succession is a big part of estate planning

If you own and operate a business, it's vital that you have proper estate planning. That can protect the continuity of your business, and help ensure that it is passed down to the people you intended to operate it. Here are three of the most important things to consider when it comes to estate planning and business succession.

When are you deemed unable to make your own decisions?

An important part of estate planning in Woodland Hills is making decisions surrounding your end-of-life care. Accidents, disease, or the effects of advancing age could place you in the position of being unable to make rational decisions regarding your own care. At what point are you considered to be unable to make sound choices for yourself? The answer to that question may be open to interpretation. What some may see as incapable of logical thought, others may view as slow and uninformed. Fortunately, the California Probate Code leaves little room to speculate on this matter.

Many attribute an inability to make good decisions to a physical or mental disorder. However, the law states that the mere presence of such a diagnosis does not mean that you are unable to think and act for yourself. It goes on to say that in order for the court to consider you as being incapable of sound decision making, you must first display a deficit in any of the following mental functions:

  •          Alertness and attention
  •          Information processing
  •          Thought processing
  •          Your ability to control your mood

Approaching retirement? An important estate planning tip to remember

You have worked your entire life and are looking forward to finally spending some time relaxing. Perhaps you are planning on taking a long vacation with your spouse, or maybe simply going to visit your grandkids. Whatever you decide to do, you are happy, healthy and looking forward to what is next.

It is easy to forget how quickly things can change. You may suffer an injury or illness at any time that makes it impossible for you to make decisions about your health care or finances. If you are not prepared for this, you could encounter serious challenges if you become incapacitated. 

In this post, we discuss how important it is for you to select a loved one to make these decisions for you. This will allow you and your family to be ready for whatever may happen, and provide you with peace of mind that things will be taken care of for you if you find yourself in this position. 

Detailing The California Probate Code’s methods of disbursement

Taking on the job of being the executor to one’s estate in Woodland Hills can be a daunting task. Thus, for many of those estates whose disbursement we here at The Law Offices of Alice A. Salvo assist with, we recommend executors learn all that they can about estate distribution methods. If you have been tasked with executing the wishes outlined in a family member or friend’s will, you may be happy to learn that you have plenty of resources available to help you understand the job you are about to do.

Certain methods for the disbursement of assets through a will, trust, or other estate planning tool are outlined in the California Probate Code. You may find that the assets in your case are to be dispersed “in the manner provided in” a certain section of the code. The details of these commonly referenced sections are as follows:

  •          Section 240: Assets will be divided into as many equal shares as there are members of the testator’s direct lineage. If one of the members has preceded the testator in death, his or her share will be divided equally amongst his or her descendants.
  •          Section 246: Assets are divided into as many equal shares as there are children of a designated ancestor. Again, any who have already died will have their shares dispersed in the same manner provided in Section 240.
  •          Section 247: Assets are divided in as many equal shares as there are members of the testator’s nearest lineal generation. Living members are given one share, and those of deceased members are once again divided equally and then dispersed amongst the remaining lineal descendants.

Revoking the probate of a will

Many estate planning strategies are geared towards helping Woodland Hills residents avoid having their estates go to probate. Most typically try to avoid probate due to the time that it takes to complete the process and the expense that comes with it. Still, thousands of estate cases go to probate each year. Caseload information shared by the Judicial Council of California shows that for the 2012-13 fiscal year, 41,419 probate cases were filed in the state’s courts. Yet simply because an estate case goes to probate does not mean that it has to stay there.

The California Probate Code leaves room for interested parties to an estate to attempt to revoke the probate of a will. That party must file a petition with the court stating his or her objections to the validity of the will. Once the petition has been filed, the court will then issue a summons to the estate’s personal representative, as well as the heirs named therein. This gives those parties the chance to participate in the call to revoke the probate of the will if they so choose, either in support of or opposition to it. However, they are only given a window of 30 days from the time that they receive the summons to respond to it. If they fail to do so, their interest in the estate is not affected, yet they are unable to participate in the revocation proceedings. They are then bound to abide by whatever ruling emerges from the revocation hearing.

What is a breach of trust?

Those in Woodland Hills who have been asked to serve as trustees may be endowed with a significant amount of power regarding an estate’s assets. What happens if they abuse that power? As a beneficiary of a trust, you typically are required to respect the terms of the trust article regarding how assets are to be distributed. At the same time, you are also an interested party to the trust, and thus have a significant concern over how the actions of a trustee may influence your interest in it. Whether or she knows it or not, a trustee owes a duty of care to you. A violation of that duty could be justification for legal action.

According to Section 16400 of the California Probate Code, you, as a beneficiary, could consider any violation of a trustee’s duties to you as a breach of trust. Should such a thing occur, the solutions available to remedy such a breach are listed in Section 16420 of the CPC. They include:

  •          Compelling the trustee to perform the duties that he or she may be neglecting.  
  •          To enjoin the trustee from continuing to commit the breach.
  •          Compelling the trust to compensate you for the loss suffered due to his or her actions.
  •          To temporality shift possession of the trust property to another.
  •          To withhold or reduce the trustee’s compensation.
  •          To remove the trustee altogether.

Three tips to keep the peace during estate planning

For most of the world, the concept of family is as complex as it is comforting. Connected by lineage rather than some other frivolous method of selection, our families are important to us because they are typically the ones who care for us when we are sick, and the ones who will keep our legacies going once we pass away.

Nevertheless, no matter how close the family, making a plan for your assets can be one of the most difficult tasks for any family to complete. Below are a few tips to help keep the peace during estate planning.

Understanding who qualifies as a professional fiduciary

Several Woodland Hills clients come to us here at The Law Offices of Alice A. Salvo claiming that those whom were entrusted with the management of an estate failed to uphold their fiduciary duty. If you also have such a complaint, then the first thing that you will want to establish is whether or not the person in question is considered by law to be a professional fiduciary. Knowing this will determine what sort of recourse you may have in holding that party responsible for his or her actions.

The exact definition of a professional fiduciary is listed in the California Business and Professions Code. According to the statute, such a classification is given to one licensed by the state who acts as a conservator to a person, an estate, or both for two more people who are neither related to each other nor to the fiduciary. One who is licensed to serve as an agent under durable power of attorney for either health care or finances, or as trustee to three or more individuals may also be considered to be a professional fiduciary.

Dealing with trustee vacancies

For those Woodland Hills residents who want to retain as much control as they can over the administration of their estates, it is often recommended that they take the steps necessary during planning to avoid the probate process. One way to do this is to place one’s estate assets into a living trust. One of the most important aspects of creating a trust is to name another to serve as trustee. Yet one thing that a grantor should consider is what would happen if, for some reason, the role of his or her trustee were to be vacated.

According to Section 15643 of the California Probate Code, a trustee vacancy would technically exist in any of the following scenarios:

  •          The person originally named as trustee dies.
  •          He or she either rejects the responsibility, resigns, or is removed by the court or the trust’s beneficiaries.
  •          The named trustee cannot be located.
  •          The trustee is facing an order for relief as a part of a bankruptcy.
  •          He or she is placed under the supervision of a guardian or conservator.