Law Office of Phyllis J. McGreevey, Esq.

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Estate Planning Services

Revocable Living Trust – A revocable living trust is a legal arrangement and agreement where the person owning the property (the “settlor”), transfers legal title of that property to a “trustee” (the person who “manages” that property), for the benefit of someone (the “beneficiary”). Generally during lifetime, the “settlor”, the “trustee” and the “beneficiary” of the trust are the same person (or persons if you are married), but the trustee position will pass to the person named in the trust, upon incapacity or death. The settlor does not give up any rights to use or sell the property, but simply puts the legal control in the name of the trustee allowing again for any incapacity and avoiding probate and deterring or eliminating estate taxes at death.

Revocable trusts are just that, revocable and amendable during lifetime and while you have capacity. You remain in control but determine who should take over the management of your assets in the event you are unable to do so. The successor trustee position is an extremely important position and selection of this person should be carefully considered. Don’t think you must name a certain person just so their feelings aren’t hurt. You must name a person who can deal with the issues. If you are unsure, you may want to consider a certified professional fiduciary. There are always alternatives.
There are various types of trusts: Individual, A-B, A-B-C, QTIP, Testatmentary, Insurance, and others. One size does not necessarily fit all.

Pour Over Will – A pour over will catches anything inadvertently left out of your trust and “pours it over” to the trust. A will alone, will not bypass probate. Further, if the gross asset value left outside the will exceeds the probate amount (currently $100,000 in California), those assets will be subject to probate. The pour over will supplements your trust, just in case. This is also the document where you would designate guardians for your minor children or disabled adult children.

Durable Power of Attorney for Property Management/Financial Affairs
– This document helps to avoid the need for the court to determine a conservator during any periods of incapacity. Conservatorships are done through a court process and can take weeks or months. This process may not allow the person you would want to act for you to be appointed, but rather the court determines who will act for you (often a court appointed conservator or guardian). And the conservatorship process can be costly. The durable power of attorney allows you to designate who will act for you if you are not able to make decisions.

Advance Health Care Directive
– This is a health care durable power of attorney where you name agents to make your healthcare decisions when you are not able. The directive names agents, states your life prolonging care decisions, directs anatomical gifts or the decision not to make gifts, final resting and disposition plans, and directs your agent regarding quality of life issues (for example your desire to remain in your home for as long as possible, but if you must be placed in a care facility, there are certain things you desire). This document should also allow your named agent to obtain your medical records under the federal privacy act, HIPAA (Health Insurance Portability and Accountability Act).

Trust Administration
– Though a properly drafted and funded trust will avoid probate at death, the successor trustee has a fiduciary responsibility to ensure prudent administration of the trust. In short, the successor trustee must notify beneficiaries and others that the trust is being administrated and keep them continually informed, assets must be gathered and protected, accountings must be completed, debts must be paid, taxes filed and paid, and property distributed pursuant to the specific terms of the trust, as well as other duties and responsibilities under the law. Trust administration can be overwhelming for a successor trustee. Though the successor trustee will oversee the process and make final decisions, working with professionals through the administration is essential.

– Generally, in California, if the gross assets of the decedent exceed $100,000, those assets will be subject to probate. Probate is a court process to ensure that final debts are paid and the remaining property distributed per the terms of the decedent’s will (testate), or under the terms of the Probate Code if there is no will (intestate). Probate is a long process (from 6 months to 2 years on average), information is open to public scrutiny, and it can be expensive (fees are set by statute and on average range from 4% to 10% of the gross estate value, plus costs).

– Spousal Property Petitions, Small Estate Affidavits and related are occasionally required in order to transfer property outside of probate.

Trust/Estate Plan Review
– Changes in the law as well as changes in your life situation, or the desire to change the terms of your estate planning documents, may involve a review of your existing estate plan. Some people just aren’t sure how their trust will work at their incapacity or at their death, and a review can often alleviate questions and concerns.


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