In the intricate and ever-evolving world of probate and estate planning, finding the right guidance and expertise is paramount to securing your family’s future. Join us on a captivating journey into the world of estate planning and probate with California probate attorney Shawn Ervin, a seasoned lawyer with profound knowledge in crafting estate plans, trusts, wills, and more. In this insightful interview, available to listen to on The Legal Odyssey Podcast, we delve into the art of preserving your legacy and ensuring your loved ones are taken care of when the time comes. Whether you’re a young adult seeking to understand the estate plans your elders have created or embarking on your own estate planning journey, Shawn Ervin’s expertise promises to shed light on the complexities of the planning and probate process, helping you navigate the confusion with confidence and clarity.
What happens if a family member passes away and they don’t have any kind of estate plan put together?
First of all, you definitely want to make sure you have gone through all of their papers, you know, a lot of times an older person, they might have decades worth of documents stored away in the house, and you really need to go through all of those to see if maybe you turn up some estate planning documents from years and years and years ago. If you’ve done all the possible searching and you’re certain that there’s no estate planning documents, the thing to do at that point is figure out and make a list of what assets need to transfer to the heirs of that person.
In some states you may have procedures you can go through for smaller assets in order to transfer them without having to go to court and open up a formal probate proceeding. For example, in California, if you found bank accounts that totaled less than $165,000, you could use something called a small estate affidavit that you fill out and sign and give to the bank, and the bank will turn those funds over to the people who are claiming to be the heirs. If there is more than that amount, for example, if there’s a piece of real property, you’re probably going to have to open up formal probate. There’s not many places in the country, or certainly in California, where there’s real estate that’s worth less than $165,000
How can a probate attorney step in when there is no existing estate plan to help navigate probate and the path of the asset distribution?
Once you have a list of all the assets to be distributed together, the thing to do would be to locate a probate attorney in your area and set up a consultation so you can go through the situation and asset list with them to come up with a plan to administer those assets and get the title to them transferred to that person’s heirs. The plan may involve several different things: it could be small estate affidavits, there are some other procedures for surviving spouses, or it could be filing a petition to open up a probate estate and just get the entire probate process started.
Have you encountered situations where individuals initially attempted to navigate probate court or handle asset distribution on their own, only to later realize the necessity of retaining legal counsel?
That happens quite a bit. You know, there’s lots of resources out there so there definitely are people who try to navigate the probate proceedings on their own and some of them are successful. However, I will say, it can be frustrating and I’ve had a number of people come to me and say, you know, the judge keeps rejecting my probate petition or he keeps continuing out the hearing and telling me that there’s things I haven’t done. Can you come on board and just help me finish out this process?
What steps can individuals take to ensure their heirs are well-prepared to effectively manage their estate plans for a successful transition?
Many adults, especially younger adults, do not even consider their estate, their assets, or what is going to happen with them. Ultimately, the neglect to consider your own assets and what you want to happen with them is only setting up your family members and heirs for a very difficult time when it comes to transitioning your estate. At minimum I encourage every adult to at least sit down and make a list of what you have and what you want to happen with it. Consider your different accounts, retirement accounts and things like that, and make sure that your beneficiaries are accurately designated. You can even designate beneficiaries on your regular bank accounts. If you have an investment account with you can have beneficiary designations and that just means it makes it clear who you want to get those funds or those assets if you pass. Your designated beneficiaries are not permanent, you can change them. The beneficiaries do not have any interest in those accounts during your lifetime. If you’re not having some sort of estate plan put together, at the very minimum make sure beneficiaries in all of the mentioned areas are updated.
If you own real estate, you should really have some sort of estate plan put together. So that could mean a number of different things.
- For some people a simple will would work. But like I said, in most cases, if you just have a will, your executor or the people that you have listed in your will are most likely going to have to open up the probate at the probate court.
- Setting up a trust is another option. Typically, going through probate court, in most instances, is quite a bit more expensive than if you had a trust that was set up and properly funded. You still might want to do a will for a couple of different reasons. The main reason would be if you really wanted the administration of your state overseen by a court who made sure that your wishes are carried out as they’re written in your will. Unfortunately it is true, sometimes the kids don’t get along and if that’s the case and they’re not going to get along and they’re going to be fighting with each other, maybe that’s a situation where you just think it would be better if a judge was overseeing everything to make sure it went smoothly. But if that’s not the situation, then what most people do now is they create a trust, often known as a revocable trust or a living trust. In that situation, you should create a document saying what you want to have happen with your assets during your lifetime, after you pass, and who you want to take over administering the trust either when you’re no longer able to because you’ve become ill or incapacitated or you’ve passed.Then what you have to do, is actually put those assets into the trust it’s called funding the trust. Think of a trust like a bowl, if you don’t put anything in the bowl, it doesn’t do anything. That means like drafting deeds to put your property into the trust, putting your investment accounts into the trust, various things like that.
Can the establishment of a trust and the appointment of a trustee help minimize the potential for contentious legal disputes regarding the trust’s administration in situations where an individual becomes incapacitated or passes away?
That is really hard to say, honestly it can depend on the situation. However, in general, I would say it’s less likely if you have the trust set up. However, there is certainly a lot of litigation that happens over trusts. Most of the time that’s going to be from either confusing or not specific language in the trust, changes that are made very late in life like maybe right before the person passes. If that benefits one family member unfairly, the other family members are likely to challenge that provision and claim that either the person didn’t have capacity to make the change because they were too ill. Sometimes people are, what attorneys call, unduly influenced. Meaning they were basically forced or cajoled by that person to make some changes that they otherwise would not have made.
How can trust litigation be avoided?
The best way to avoid trust litigation is to make sure that the trust is drafted as clearly as possible. If you’re making provisions that are maybe leaving less to a particular child or nothing to a particular child, I usually like to explain in the actual trust document why.
You may say, well I put this child through medical school, so I’m not leaving anything to them or as much to them because I, you know, I feel like I’ve already given them a lot or this child disappeared from my life 20 years ago and I’m not going to leave them anything. Just some sort of reasoning so that it’s just clear why you’re doing it. It’s less likely that somebody’s going to be able to say that it was a mistake or that it wasn’t really what was wanted or something along those lines with all of the details included.
In an advancing digital world where there are constantly new services and innovations, can somebody just go and set up a trust, estate plan or a will without an attorney?
They can and there are a lot of resources out there to make that possible. As you know, there are a lot of online resources, packages you could buy, things like that. You know, I’d say a lot of times it probably works fine. However, I would also tell you that as far as my litigation practice, trust litigation practice, 90% of that work comes from people who have tried to do it on their own to save maybe a few thousand dollars then it ends up creating a $200,000 problem because it just wasn’t clear, there were issues that they didn’t think about or whatever the case may be. My recommendation would be to go to an actual professional that you can sit down and look at and ask questions and think through your estate plan thoroughly with. Again, I guess what I would say is maybe it’ll work. But if it goes wrong, it’s likely to go very wrong and be much more expensive. It’s ‘ Pennywise Pound Foolish ‘, where you tried to do your trust package for a couple hundred dollars online, but unfortunately, you left a problem for your family that could be just many, many thousands of dollars.
Could you please provide insights into how the power of attorney is integrated within the framework of estate planning?
A power of attorney is a document where you are saying, I am authorizing this other person to act on my behalf. That is only during your lifetime. So once you have passed the power of attorney no longer has any effect. The power of attorney is usually there to prepare for if you have an accident and for some period of time you are incapacitated and you can’t pay your mortgage, you can’t pay your water bill, ect. It lets somebody go out and do those things for you. If someone just isn’t able to take care of those things anymore due to aging and they need somebody to step in. There’s two different types of powers of attorneys. There’s something called a durable power of attorney where you say, I want this to be effective even if I become incapacitated. That is really important because that is ultimately the purpose. If you don’t have that type of language, then it doesn’t work after you’re incapacitated, so it kind of defeats the purpose.
The other thing that you were talking about, in California, we would call it an advanced health care directive. Sometimes in other states, it’s called a power of attorney for health care. That authorizes somebody to make medical decisions for you when you are not able to and that’s really important also. If, unfortunately, you do get in an accident or you do become ill and you can’t make medical decisions anymore, you really want somebody who you know, who you trust making those decisions for you. You also want to make sure that you’ve told them what you want in terms of healthcare. If you haven’t authorized somebody to make important healthcare decisions for you, and told them what you want, then there’s just no way that you can be sure that your wishes for your life are going to be carried out.
If you have further questions or need legal assistance related to estate planning, probate, or trusts, remember to consult with a qualified attorney who specializes in these areas. Search Estate Planning or Probate attorneys at LawyerGuide.com to find a qualified attorney near you.