Owning property jointly with your spouse is fairly universal and there are estate planning benefits to doing so, including tax savings and post death transfers. However, when it comes to a divorce, there are some issues with joint ownership of which you may not be aware. This article will discuss the issue that arises with owning property in joint tenancy when you begin a marriage dissolution.
We are not divorce attorneys, but there is a fair amount of overlap when it comes to post death administration of someone’s estate. If you are currently in a divorce proceeding, you should discuss the issues raised here with your family law attorney. For our purposes, we want you to be aware of the issues raised here so they can be properly handled in the estate planning context.
First, let’s discuss what it means to own property as joint tenants with your spouse. While this is not the best method for most married couples to hold title, it seems to be very common. Primarily because this is often advice given by real estate agents in the home buying process. While the agent likely has your best intentions in mind, advice on how to vest title can be very complex. Which is why you should discuss this with your attorney instead.
Joint tenancy is a form of joint ownership which is created at the same time through the same transferring document (typically a deed). The special feature of joint tenancy is the right of survivorship that is attached to it. This means that when one of the joint tenants dies, their interest is extinguished and the property interest is instead vested with the surviving joint tenant(s).
Joint tenancy allows for property to be transferred without the need of a court proceeding. It is a great tool for estate planning in certain situations. However, don’t chose this option just because it is cheap or easy. As I mentioned, title vesting is complicated, so it is best that your options are reviewed with an attorney, so you can make the right choice for you and your family.
Estate Planning Effects of Joint Tenancy After Death
Since Joint Tenancy has the right of survivorship feature, your interest in that property is not subject to the instructions you give in your will or trust on how that property is to be disbursed. This is because your will or trust can only distribute property you own at the time you die. Since the property interest you have in property that is owned in joint tenancy is completely extinguished on your death, there is nothing to pass along through your will or trust.
This is the bad side of a joint tenancy form of ownership. You do not have the ability to distribute your interest in a will or trust. The interest simply vests in those with whom you hold a joint tenancy ownership interest.
Severance of a Joint Tenancy
When you take title to a property interest in joint tenancy, you are not necessarily locked into that form of ownership forever. And in the same token, neither are your fellow joint tenants. You all can “sever” the joint tenancy through your own actions.
Meaning, you can remove your property interest from joint tenancy and own it jointly in another form of joint ownership; typically, tenants in common. Assuming this new form of ownership is in fact one that lacks the right of survivorship provision, your property interest can then be distributed according to your instructions in your will or trust.
The method of properly severing the joint tenancy is outside the scope of this article, but if you choose to explorer this option, you should talk to an attorney prior to doing so as it could result in some grave consequences if not done properly.
From an estate planning perspective, joint tenancy can present a liability for you. Since your fellow joint tenants can sever the joint tenancy on their own accord, the property interest you thought you would receive when they die may not happen. Therefore, you should protect yourself and instead explorer other options, such as a living trust.
Severing a Joint Tenancy During a Divorce
While you are typically allowed to sever a joint tenancy on your own accord, there are some situations which prevent you from exercising this right. The initiation of divorce proceedings institutes an automatic stay on the transfer of marital assets. The purpose for this is obvious, we don’t want spouses to serendipitously transfer all the marital assets out of the community estate unfairly. So, the law protects that from happening.
This means that when a divorce is filed with the court, you can no longer unilaterally sever the joint tenancy of property you own with your spouse. Instead, there is a procedure in place that requires you to sever the joint tenancy in a manner prescribed by law. Your family law attorney will help you with this and if you are in the midst of a divorce now, you should have this conversation immediately.
Effects of the Automatic Stay on Estate Planning
It is likely that you will want your ownership interest in the jointly owned property to go to someone other than your soon-to-be-ex spouse. However, unless you sever the joint tenancy, that may not happen.
This is especially true if you are wanting to either update your estate plan or create a new plan because of the divorce. There are steps that must be done in order to ensure your wishes are able to be carried out when you die, especially if you die before the divorce is completed.
Simply establishing or amending a will or trust alone may not be sufficient. Remember you can only distribute property you own at your death through a will or trust. So, if you have not severed the joint tenancy, the property you owned with your spouse may go entirely to that spouse if you were to die before the divorce is finalized.
While you may be focused on the divorce proceedings and dealing with the complex issues that presents, you need to also consider the possibility that you could die before the divorce is completed. This is why consulting with an estate planning attorney when you begin your divorce is vital to protecting your property interests.
The Filippi Law Firm, P.C. can help you navigate those uncertain times and will work hand in hand with your family law attorney to make sure your property interests are fully protected. Give us a call today to schedule a consultation.
The two most important components of the estate planning process are a trust and a last will and testament. Most of us know about the structure and purpose of a will, but California trusts are a little harder to understand.
Trusts have a more complicated legal structure, especially when compared to wills. Plus, with the different trusts available, it’s hard to know which one is right for your purposes.
Still, there are several benefits of a trust. Contact your trust attorney in Rocklin, CA, to learn more about them. In the meantime, this guide will take you through them and help you better understand this essential tool.
Why Have a Trust?
In estate planning, a trust attorney in Rocklin, CA, recommends creating a trust when individuals have over $200,000 in assets. This includes homeowners.
A trust is also a crucial tool for parents who need to control the distribution of their assets to their children. This is challenging when there are young children involved and if there are children from previous marriages to consider. But these aren’t the only reasons to get a trust.
Some of the reasons to set up a trust include the following:
1. Probate Court Avoidance
One great reason to undertake the estate planning process is it prevents your loved ones from going through lengthy probate court proceedings. This will save your loved ones from dealing with the courts at an already challenging time of passing.
There are also several expenses that come with probate, like court and attorney fees. A comprehensive estate plan will help your family avoid this headache.
2. Reduction of Estate Taxes
The establishment of a trust is a fantastic way to reduce and/or eliminate expensive estate taxes. This works because when you transfer your assets into a trust, it reduces the size of your overall taxable estate.
3. Keep Control of Your Assets
Sometimes, trusts are better than wills. They give you a certain level of control over your estate that wills just cannot.
The structure of your trust allows you to set it up how you want. You decide when and how to distribute your assets.
If your children are young, this is a good way to make sure they don’t get their inheritance in one lump sum. You can create a trust with certain life milestones in mind. For instance, you can specify it, so your children receive their inheritance after high school or college graduation. You could even wait until after they’re married.
4. Improve the Estate Planning Process
Once you’ve done the work of creating a trust, the challenging part is over. Trusts are very low maintenance. For instance, you might have to update your estate plan when certain life events, like the purchase of a new asset, occur. A trust, on the other hand, rarely needs changes.
5. Preparation for Worst-Case Scenarios
Life can sometimes impede our best-laid plans. Estate planning is an essential step in protecting you and your loved ones. A trust will make sure your loved ones are in excellent hands in case you become incapacitated.
Help make sure you make special accommodations for children with special needs.
If your children have long-term medical challenges or special needs, creating a trust is an excellent idea. It’ll offer them extra protection once you die. For instance, you can set up a trust to provide your child with long-term financial help.
6. Fair Division of Assets
When you begin the estate planning process, you might notice certain assets are harder to split up between your beneficiaries. Trusts are a great way to designate how to distribute the more complex assets after your death.
Let’s say you have a family business or vacation home that you need to split up. Trusts are a good way to do that because they let you specify what goes to who.
7. They Guarantee Family Protection
Trusts are a great way to make sure your children and spouse continue to live good lives after you’re gone. For instance, the distribution of assets becomes more complicated after marriage or divorce.
Creating a trust will ensure your children or spouse get their rightful inheritance. It doesn’t matter if their family structure changes later in life or if they remarry.
Common FAQs Concerning Trusts
After discussing the various reasons to get a trust, you might still have some questions. This list of common facts and their answers will provide you with more insight:
If I have a will, do I need a trust?
Even if you have a will, you may need a trust attorney in Rocklin, CA, to help you create a trust. It all depends on your financial and legal needs. All a will does is name your beneficiaries and discuss how to distribute your assets.
A trust, on the other hand, gives you more control over these factors. A trust can also make it so that you can create a more complex estate planning structure. This is particularly helpful for those with blended and other types of large families.
Why do I, a California resident, need a trust?
In many cases, if you’re a homeowner in California, you need it. Property values are so high in the state you’ll need extra protection and control over the distribution of your assets when you die. When you create a trust, it’ll make sure that your property stays within your family or goes to another loved one.
It’s more common than you think for people to create a last will and testament and never think about estate planning again. Unfortunately, this may make your estate vulnerable to various estate taxes and issues in probate court.
When you create a trust, contact a trust attorney in Rocklin, CA. They will help you get more control over your asset distribution. There are even tax benefits to going through with this process.
With that in mind, there are several reasons to create a trust that you should consider when coming up with an e0state plan. Thankfully, your Rocklin, CA, trust attorney will help you get started.
Do you need a lawyer to make a living trust?
Yes. The good news is, if you are in California, the team at Filippi Law Firm, P.C. will be by your side to guide you through every step of the process. We are proud to be your Rocklin, CA, trust attorney and will ensure all your assets receive the protection they deserve.
If you’re the parent of someone with special needs, you know that your worries about your child extend far into the future. You may wonder what will happen to your child in the event of your death. Remove these worries with a special needs trust.
If you want to leave property or money to a loved one with special needs, you should not do so in a will or living trust. You must plan carefully and take advantage of the California special needs trust. A special needs trust in California will ensure that your child’s government benefits get preserved and they can live a fulfilling life.
To get started, contact a trust attorney in Rocklin, CA, at the Filippi Law Firm, P.C. today. We will ensure your special needs trust California exists so your loved one’s needs get met in the event of your death.
So, what’s a special needs trust, how does it differ from other estate plans, and why should you create one?
Special Needs Trust Rules
A special needs trust is an important part of an estate plan for parents with disabled children. It’s an irrevocable trust that gives disabled people the ability to maintain their eligibility for public assistance benefits. It doesn’t matter if they’re the recipients of assets that normally would make them ineligible.
If you don’t establish a special needs trust before you die, you could jeopardize your loved one’s ability to get essential government benefits. Furthermore, you can’t just set up any old trust with a few special needs provisions. This is unlikely to address the comprehensive issues that arise over the lifetime of someone with special needs.
Fortunately, a special needs trust not only preserves government benefits but also helps your loved ones live a satisfying life despite their disability. It makes sure your protective bubble for them persists, even when you’re not around.
Special needs trusts fall into two basic categories:
- First Party Funded: With this type of special needs trust, the individual who’s responsible for funding this trust is the one receiving government benefits. For example, this type of trust would allow a disabled with a lawsuit settlement to create a special needs trust for themselves to make sure they keep receiving their government benefits.
This type of trust must include state and federal provisions. For instance, it’s a requirement that one must give notice to the state when the trust gets terminated, or the trust beneficiary dies.
- Third Party Funded: This special needs trust is easier to set up than its counterpart. In addition, it doesn’t have a payback clause. It gets funded with assets belonging to someone other than the beneficiary.
How Long Does a Special Needs Trust Last?
A special needs trust lasts for as long as your loved one with disabilities is alive or until the funds are gone. An independent trustee will manage the trust for the benefit of your disabled family member. The government does not view the assets in trust as being the disabled child’s property. This makes it easy for your child to use them for their education, health, maintenance, and other forms of support, far beyond what Medi-Cal covers.
Why Should You Create a Special Needs Trust?
Anyone who’s ill or disabled receives support from the federal government in the form of Medi-Cal, California’s version of the federal Medicaid Program. They can also receive support from SSI or Supplemental Security Income. Social SSI helps disabled and elderly people with little or no income – it gives them cash to meet basic needs like shelter, food, and clothing.
But SSI and Medi-Cal put a limit on the number of financial resources a recipient can have. They do this to make sure they are helping those that are really in need. As of right now, the resource limit is $2,000 for individuals. So if you leave your disabled family member an inheritance over $2,000, they will no longer receive government benefits.
This is problematic in several scenarios:
- The inheritance your loved one gets is less than what they would have gotten if they continued to receive government benefits.
- If your disabled family member has unique medical needs, it is easy for their inheritance funds to get depleted by medical expenses. Unfortunately, this leaves them with no financial support.
- Once the inheritance is gone, the disabled family member can reapply for benefits. However, this causes a sense of uncertainty and disruption that most parents would want to avoid if possible.
How To Create a Special Needs Trust
In the past, many parents had to disinherit a disabled child from their estate plan so that it wouldn’t affect their government benefits. Thankfully, today there’s a better solution to this problem. A third-party funded special needs trust will guarantee your disabled family member can get their inheritance and still continue to receive their benefits.
It’s important to create a special needs trust before you pass away. Life is uncertain, and we never know for sure what lies around the corner. So don’t delay calling your trust attorney in Rocklin, CA, and creating a special needs trust until it’s too late.
How Much Does It Cost To Set Up a Special Needs Trust?
The answer to this varies. However, the average price to set up a special needs trust in California is around $1,500. A trust attorney in Rocklin, CA, can help you start.
Get Started on Your Special Needs Trust With Our Trust Attorney in Rocklin, CA
When you’re alive, there are enough problems plaguing your family member with special needs. So, it’s common to worry about what will happen to them when you pass away. A special needs trust ensures that someone is looking out for your family member with special needs at all times.
Contact an experienced Rocklin, CA, trust attorney as soon as possible to create a plan for the future. They will provide you with the counsel you need to create a trust for your family member’s special needs. Your Rocklin, CA, trust attorney gives you personal advice on the best way to make sure your family gets taken care of when you’re gone.
If you are the deceased person’s spouse, child, or parent, you may be entitled to receive assets upon the death of the person. Probate can be a complicated process, and it is important to consult with an estate law firm if you have questions or concerns about the probate process. If you need help with probate law, get in touch with an estate lawyer in Rocklin.
What is Probate?
Probate is the legal process of administering a person’s estate after their death. It includes distributing their assets to their beneficiaries and paying any debts and taxes owed.
What Are the Steps of Probate?
Generally, the process probate goes as follows:
- The executor or administrator of the estate files a petition with the court.
- The court appoints an executor or administrator for the estate.
- The executor or administrator collects the assets of the estate and pays any debts and taxes owed.
- The executor or administrator distributes the assets of the estate to the beneficiaries.
Note: The steps of probate vary from state to state, but generally, the process is similar. Contact us to learn better about your situation.
How Does Probate Court Work?
The probate court appoints an executor or administrator to administer the estate and distribute the assets to the beneficiaries.
What Are Probate Assets?
Probate assets are those assets that are subject to the probate process. It includes all property owned by the deceased person that is not jointly owned, has no designated beneficiary, or is not held in a trust. There will be a probate assets list that covers all the assets.
Some examples of assets that may be in probate are:
- A house
- A car
- Bank accounts
- Personal property
Do I Need To Go Through Probate?
It depends. If the deceased person left a will, then their estate will need to go through probate. But if the deceased placed their assets in a living trust, probate isn’t necessary.
The probate process can be time-consuming and expensive. It is important to hire an experienced probate lawyer to help you through the process.
Who Are Involved in the Probate Process?
The probate process involves the executor or administrator of the estate, the beneficiaries of the estate, and the court.
The Administrator of the Estate
The administrator of the estate is the person appointed by the court to oversee the probate process.
Beneficiaries of the Estate
Beneficiaries of the estate are the people who are entitled to receive the assets of the estate.
The court is the legal body that oversees the probate process.
What is a personal representative?
A personal representative is a person who is appointed by the court to oversee the probate process. In most cases, the personal representative is an individual who has a close relationship with the deceased, such as a spouse or child. However, in some cases, the court may appoint someone else to be the personal representative if no family members are available. A personal representative is the same as an executor or administrator.
What Are the Estate’s Obligations to Estate Creditor?
The executor or administrator of the estate is responsible for paying any debts and taxes owed by the estate to the creditor. The administrator may use estate assets to pay these debts and taxes.
How Long Does It Take to Deal with Probate?
The time it takes to complete the probate process varies depending on the size and complexity of the estate. Generally, the process can take anywhere from a few months to a year or more.
Factors that Make Probate Last Longer
Some factors that can make probate last longer are:
- A large and complex estate
- Multiple beneficiaries
- Disagreements among beneficiaries
Factors that Shorten the Probate Process
Some factors that can shorten the probate process are:
- A small and simple estate
- All beneficiaries agree on the distribution of assets
- No creditors
How Do You Get Around Probate?
There are a few ways to avoid probate. It includes joint ownership of property, designation of beneficiaries, and setting up a trust.
Is Probate Harder Without a Will?
If the deceased person did not leave a will, then their estate may still need to go through probate. The probate process may be more complex without a will, but an experienced probate lawyer can still help you through the process.
How a Probate Lawyer Can Help You
If you are the executor or administrator of an estate, consider hiring a probate lawyer to help you with the legal process. A probate lawyer can help you with tasks such as filing the necessary paperwork with the court, distributing assets to beneficiaries, and paying debts and taxes owed by the estate.
Probate attorneys are knowledgeable in probate law; they know what steps need to be taken and how best to go about it. They also know how best to communicate with family members and heirs so that everyone understands what’s going on and feels comfortable with it all.
A probate action requires a court order and may take many months or even years to complete. It is different from a will, which is just a document that you create before your death and make it clear how you want your property distributed after you die. If you are expecting to face probate, hire a probate lawyer to help you with the legal process. Contact Filippi Law Firm P.C. now.
Trying to determine how to proceed with your assets during your life and after can be a complex question. When planning for an estate in California, you can choose between California wills and trusts for your property.
There are a few differences between wills and trusts. The biggest difference is the transfer of property that happens. With a will, there is a lengthier process through probate court. This can be avoided with a living trust, where transfers happen quickly.
If you have questions or want more information, an estate lawyer in Rocklin of Filippi Law Firm P.C. is available for your needs.
What Are Wills?
A will is a traditional document that has been used for years as a way to pass estates and inheritances from one party to the next after death. You are able to provide exactly how you want your property divided and name whom you want to be beneficiaries.
Benefits of California Wills
- Decisions and stipulations are available.
- Requires legal action to be filed
- You are the owner of your estate until your death
One of the main reasons wills are chosen is because of the freedom for decisions regarding the property in the estate. A lawyer for estate planning in Rocklin can help you with this process and have it filed legally. Because the will goes into effect at the time of your passing, you are the only owner of the property, and you do not have a third party involved during this process.
Disadvantages of California Wills
All wills in California must go through the probate court in order to be redistributed. It means that it is evaluated by a legal team to determine that it is legitimate, and the process can take several months.
Probate court is not only tedious and time-consuming, but it can also be expensive. Probate will require fees for processing the estate planning, and the estate can be subjected to inheritance taxes.
How to Set Up Your Will
If you believe that you want to utilize a will to distribute any property, retirement funds, or make charitable donations, you will need first to consult a legal team. They will help you establish all the different parts of your estate that needs to be outlined during this process.
The second part of setting up your will is to determine who your beneficiaries are if you intend to have multiple. You will need to specifically outline what parcels and pieces of property are being given to each individual. It is the point where you outline any stipulations you have regarding the property.
Finally, you must have a witness sign your will to confirm that you were in the right state of mind at the time that you made the will.
What Are Living Trusts?
A California trust is established while you are still living and will include a third party as a successor trustee to manage the assets even while you are unable. This third party oversees and manages the different parts of the property listed in the living trust.
Benefits of Living Trusts
If you are ready to transfer property to beneficiaries before you pass, you have the flexibility to do just that when you are ready. This is ideal for those who want to protect their property and their interests should they become ill or unable to make legal decisions.
Another benefit of living trusts is the ability to revoke property or plans for the estate if you change your mind or need to remove a beneficiary. With wills, they are more challenging to change, but you have some flexibility with the living trust.
Living trusts also transfer immediately to the beneficiary when you are ready, either before your passing or after. There is no hold on the estate from the probate court that comes with wills.
Disadvantages of Living Trusts
If you have a revocable living trust, you do not have protection from creditors who want to claim your assets. If you owe money, they may be able to still claim your property depending on the type of trust that you secure.
The cost of setting up a living trust is a bit more than a will. Having to choose a third-party is something that many residents of California have a hard time getting.
How to Set Up Your Living Trust
Like your will, you need to meet with an estate attorney in Rocklin and have them help you start this process. You will need to outline the properties and items within the estate and your beneficiaries. You also need to determine what type of living trust you want for your property so that you can have the appropriate protection.
Are Trusts Better Than Wills?
Depending on when you plan to disperse your estate is really the question of which is better. There are pros and cons to both a will and a trust, but based on your plans for your estate, one may work better for you than the other.
Do I Need A Will or Trust in California?
If you are still not sure what document works best for you or just simply want more information, reach out to the Filippi Law Firm P.C California trust and will estate lawyers. Our team has a wealth of knowledge and experience that can assist you with choosing the right path for you. Contact us today to schedule a consultation to start setting your will or trust.
A conservatorship is a court judgment mandated upon an individual when they are found to be unable and incompetent at making sound decisions for themselves. This individual is known as the conservatee.
Because their inability to make rational decisions could impact their lives and those around them, the court appoints another person to take on the role of their “guardian.” This is known as the conservator.
Thus, a conservatorship is a legal relationship between the conservator and the conservatee. But what if the conservator is not doing their job? Get legal help from an estate planning attorney of Filippi Law Firm, P.C., to get help when a conservator is not doing their job as intended.
The Power of the Conservator
Under this setup, the conservator has the power to act on behalf of the conservatee. They will also be presumed to act in the conservatee’s best interests.
Common situations where a conservatorship may be required include cases where an individual falls into a coma or suffers from a degenerative mental disease like Alzheimer’s. It could also simply be that a person is vulnerable and prone to being taken advantage of mentally, physically, or financially.
The conservator’s role primarily manages the conservatee’s daily life and general state of affairs, including their finances. Because it covers practically any aspect of the conservatee’s life, a conservatorship is otherwise known as adult guardianship.
Conservators, therefore, are responsible for managing, preserving, and administering the conservatee’s assets while still under this protective setup. Because of the sensitivity of these matters, it is essential to work with an estate lawyer Rocklin, who is well-versed in estate planning California.
An estate planning attorney California can help the conservator in putting the conservatee’s affairs in order, especially if no planning for estate has been done at all.
How to Handle Failed Conservatorships
A conservatorship may fail or work against the best interests of the conservatee when the conservator cannot do their job well. It could be that they are unable to manage the conservatee’s assets as well as they should, putting it in bad investments or spending it on unnecessary things. It could also be as simple as failing to regularly pay the conservatee’s bills, whether their regular dues or bigger financial obligations like loans.
Unfortunately, this happens a lot more commonly than is preferred. And ultimately, the one suffering the most is the conservatee themselves.
That’s why the concerned party needs to step in and work with an estate attorney Rocklin. With their help, the existing conservatorship can be contested, so the conservatee may either be freed from this legal relationship or be transferred under the care of another, more qualified conservator.
An attorney well-versed in estate planning Rocklin can file the contest before the court. This starts the process of reassessing the necessity of the current conservatorship and if it is, indeed, still working in the best interests of the conservatee.
Seek legal help to correct a failed conservatorship. Get in touch with an estate lawyer Rocklin or an estate planning attorney California from Filippi Law Firm P.C. to get the help you need.