Frequently Asked Questions
A trust is the first building block of a complete estate plan. You also need pour over wills, durable powers of attorney for financial decisions, and advanced health care directives to complete a basic estate plan.
Your trust should be reviewed periodically to ensure that it accurately reflects your wishes. Often, as people age and their estates grow, they may need advanced estate planning to minimize or to eliminate estate taxes. And, of course, if there are changes in your family or personal situation, your estate plan should be reviewed by Acuña ❖ Regli.
You should contact an attorney immediately because many of your previous estate planning documents and beneficiary statements are no longer effective. You should consider a premarital agreement and receive advice as to the best estate plan for your new marriage.
If you are considering a premarital agreement, please leave enough time to receive legal counsel, to draft the premarital agreement, and to consider it before signing. There are strict time limits that apply to premarital agreements, and you should begin planning more than 30 days before your wedding day.
There are notices which must be given, filings which must be made, and your estate plan should be updated to reflect the death of your loved one.
Nothing needs to be done immediately. Most legal matters can probably wait for two to three weeks. However, if there are pressing business or legal matters, an attorney should be called immediately. An attorney also should be contacted before you make any asset transfers or decisions about retirement plan rollovers.
You should order at least ten death certificates at the funeral home or mortuary. The funeral home will notify Social Security of your loved one’s death. Your attorney will assist you with notifying pension plans, insurance companies, and financial institutions.
Some estates may require probate court action to transfer assets to the surviving spouse. This usually does not require formal probate proceedings. Instead, California law provides for a probate shortcut – a Spousal Property Petition – which usually takes about 60 days to complete.
In all estates, final income tax returns should be filed and annual trust tax returns may be required. If your loved one’s estate is of sufficient size, an Estate Tax Return must be filed within nine months of the date of death. In all estate matters, your attorney should coordinate with your tax professional.
In California, anyone who owns real estate worth more than $50,000.00, or other assets totaling more than $150,000.00, needs a living trust or other probate avoidance plan.
All adults need a will (called a pourover will if made in connection with a living trust), a durable power of attorney for financial decisions, and an advanced health care directive. A particular individual’s needs must be assessed by an experienced estate planning attorney. Acuña ❖ Regli has helped more than 10,000 families with their estate planning needs. All of those matters were handled by attorneys; not like “trust mills” who deliver “cookie‑cutter” documents without offering the benefit of an attorney’s attention and guidance.
A will sets forth who is to receive a person’s assets after death. It must be “proved” in probate court to be effective. It is a public document which can be examined by anyone who walks into the courthouse.
A trust is a self‑proving instrument in which does not need to be “proved” in probate court. Therefore, what would take a year or more in probate court often can be accomplished in a bit more than four months with a trust. Unlike a will, the terms of the trust remain private and are revealed only to the beneficiaries, in most cases.
In many homes, pets are members of the family. You may use a will or trust to determine who will take care of your pets and to set aside money or other assets for their care. However, a pet may not inherit your estate. At Acuña ❖ Regli, we have created many “kitty trusts” (and “puppy trusts”, “horse trusts”, “bird trusts”, and “turtle trusts”, too!).
A direct gift of $14,000.00 per year from each grandparent to each grandchild is always possible. There are more ways to help grandchildren with college costs while making sure that they are not in control of large sums of money before they are ready.
One of the most effective ways is a §529 Plan, which permits up to five years’ worth of gifting in a single year (up to $70,000.00), and permits the gifted money to grow and to be spent on college costs, tax free. Some families may choose to create their own college trust, which is an effective way to provide for a number of grandchildren of different means and needs.
There are a number of alternatives which may fit your family’s situation. Some include delayed distributions or incentives to promote healing; annuities to provide guaranteed retirement income; or, a lifetime trust with limitations on pre‑approved expenses can be drafted. Each of these alternatives will insure an inheritance for a loved one.
You should carefully consider who will serve as trustee for a child facing difficulties. Licensed professional fiduciaries, banks, attorneys, or other certified specialists can relieve a responsible family member from the strain of dealing with a drug or alcohol dependent child who is exerting pressure for more money.
Recording estate planning documents is not required. The only document recording that is required is the deed which transfers real estate that you own into your trust. Other than that deed, a living trust is a private document which only needs to be shared with the persons of your choosing.
It may be advisable to record powers of attorney in some situations to give notice that the agent has the legal right to act on a disabled adult’s behalf. Recording the power of attorney also gives notices that any previous power of attorney has been revoked.
A living trust is a private document. However, many financial institutions require proof that a trust has been created. California law provides that a Trust Certification may be given and that the financial institution is required to accept it. Acuña ❖ Regli prepares a Trust Certification for you whenever we create a trust.
Transferring retirement accounts such as 401k’s and IRA’s to the name of the trust is not advisable because it may trigger unwanted tax consequences. Instead, death beneficiaries should be reviewed carefully to ensure that the correct beneficiary is stated.
In some cases, the trust may be drafted as a beneficiary of the retirement account. This may be advisable to control a spouse or child’s access to the retirement account. Instead of unlimited access as a direct beneficiary, the trust can be drafted to place controls on how much is withdrawn from the retirement account and what can be done with the proceeds.
In all cases, the worst thing is to fail to make any beneficiary designation at all, or to leave an out‑of‑date designation in place (such as naming an ex‑spouse as the beneficiary of your 401k!). Please consult with your attorney or tax advisor before making changes to beneficiary statements.
No! Indeed, writing changes on a will or trust may invalidate the document!
Instead of writing on a will or trust, please make notes on a separate piece of paper. Then, call Acuña ❖ Regli to assist you with making changes to the will or trust.
A Health Care Power of Attorney (also referred to as an Advance Health Care Directive or a Power of Attorney for Health Care Decisions) gives your agent the authority to make health care decisions for you when you cannot. This is important because California privacy laws and the Health Insurance Portability and Accountability Act (“HIPAA”) have become the norm. Hospitals and doctors are reluctant to provide information to your agents without proper authority. Therefore, hospitals and doctors insist upon receiving a copy of your Health Power of Attorney before discussing your private medical situation with your agent.
Your power of attorney may address several important decisions, such as life support, organ donation, autopsy, and burial or cremation. For many people, it is their most important estate planning document.
A Durable Power of Attorney for Financial Decisions allows your agent to take care of your financial needs such as signing tax returns, drawing on retirement plans while incapacitated, or suing the driver who caused your incapacity. A Health Care Power of Attorney is limited to health care and end‑of‑life decisions. You need both to plan completely for incapacity arising from illness or injury.
Same gender couples who marry enjoy all the rights and privileges of married persons. California domestic partners do not receive protection under federal tax law or access to federal benefits such as Social Security. Furthermore, there is great confusion within California and in other states as to what a California domestic partnership means.
Domestic partners should not rely on registration alone to guarantee an inheritance or other rights. Instead, domestic partners and married persons alike should give careful consideration to their marital status and the benefits and liabilities they might share.
All married partners, domestic partners, and unmarried life partners should create a complete estate plan, which may include premarital agreements, wills, trusts, and powers of attorney.
Acuña ❖ Regli can check online title records for you, at no charge. If necessary, we will create and record a deed for you to return your property to the trust for a reasonable fee, saving your estate the potentially high cost of a probate if the real estate is not in your trust at time of death.
A trustee or executor of an estate must carry out the deceased’s wishes. They may also be sued if they do not administer an estate correctly.
If you are called on to administer an estate, we will set an initial consultation to review all of your duties with you. We will then assist you with all of the steps necessary to administer the estate and to protect you from legal action by tax authorities, creditors, or disgruntled heirs.
Fortunately, California law provides for a Spousal Property Petition. This is an alternative to probate and is much faster and less expensive than a full-blown probate petition. Please call Acuña ❖ Regli to set a complementary consultation appointment.
Maybe. If he had less than $50,000.00 in real estate, or $150,000.00 in total estate value, there is a probate alternative with which we can assist you. Please call us.
No. Unfunded trusts are a real problem. Many trust mills and some attorneys create trusts but do not transfer real estate or provide instruction letters to financial institutions directing asset transfers into the trust. But there is a solution that avoids probate.
Acuña ❖ Regli can prepare a “Heggstad Petition.” This is a Probate Petition that takes much less time and is much less expensive than a full blown probate. The basis of the petition is that your mom created a trust and wanted the trust to control her estate. However, she made a mistake in “funding” the trust.
If the court approves the petition, the property will be transferred to the trust and the trustee can complete an ordinary trust administration.
Businesses may be held in a wide variety of ways: Sole proprietorship; Partnerships; Corporations; Limited Liability Companies. The form of ownership chosen depends upon many factors including the assets held; whether there are multiple owners; the type of business venture; and the needs of the business (growth, investment, or business succession).
Corporations, limited partnerships, and limited liability companies may shield the owner’s personal assets. And, in all cases, when more than one person is involved with a business, it is very important to have a written agreement in place which deals with potential business issues.
Acuña ❖ Regli attorneys will help you think through issues and decide on the best entity for your business. We will assist you with business formation, annual maintenance, and issues as they arise. Finally, we will make sure that your business is covered by your living trust, creating a tax-deductible business succession plan for you.
There are a number of options which allow real estate investors to avoid capital gains taxes. Our firm can assist you with a §1031 exchange, installment sale, or charitable remainder trust. If you wish to keep your investment real estate, but do not want to manage it, we can help you with management contracts for professional managers, as well as trusts or family limited partnerships to transfer management to your loved ones.
First of all, don’t worry. There will be no increase in real property taxes upon the death of the first spouse.
After the death of the second spouse, children may inherit the family residence plus One Million Dollars of other real estate from their parents with no increase in real property taxes. However, a Claim for Reassessment Exclusion and all supporting documents must be timely filed.
If you own more than One Million Dollars of investment real estate, there are some powerful succession planning tools which may transfer your real estate to your children estate tax free and safely beyond real property tax reassessment. This must be done in advance of your death, and you should call Acuña ❖ Regli for an advanced estate planning consultation at your earliest convenience.
If your son is unable to give informed consent for medical treatment, you may need a limited conservatorship. A limited conservatorship is specifically for developmentally disabled people who require assistance for daily living activates. It gives the conservator the ability to seek medical treatment on behalf of the conservatee. There are additional powers that allow the conservator to find appropriate housing and education for the conservatee as well. Call Acuña ❖ Regli today for a free consultation to determine if a limited conservatorship is appropriate for your circumstances.
I am worried about my mom. I think she may have dementia, but she refuses to see a doctor. She has grown more and more confused over the last year. She has been picked up twice in the neighborhood wondering around lost. Last month she left the stove on and started a small kitchen fire. Luckily she was not hurt. I have tried to talk to her about moving to an assisted living facility, but she gets very angry and refuses to discuss it. What can I do to help my mom?
You may need a conservatorship for your mother. A conservatorship may be of the person, of the estate, or both. A conservatorship of the person allows the conservator to make decisions for the conservatee regarding medical treatment and living arrangements. A conservatorship of the estate allows the conservator to make financial decisions for the conservatee. Conservatorships can be expensive and require court supervision. Call Acuña ❖ Regli today for a free consultation. We will explore conservatorship and all of its alternatives and assist you with determining the most appropriate course of action for your particular circumstances.
Under California law, a trustee must give written notice to all beneficiaries within 60 days of the trustor’s death. This includes providing a complete copy of the trust upon request by a beneficiary or heir at law. Similarly, an executor must begin probate proceedings, if required, within 60 days of death. They should also provide a copy of the will upon request.
Acuña ❖ Regli can assist you by contacting the executor or trustee and informing them of their legal duties. If they refuse to comply, we can file a Petition in the Probate Court to compel them to act, to remove and replace them if they refuse, and to force them to pay for your attorney’s fees and costs caused by their refusal to act appropriately.
Yes! A trustee must account every year for all trust activity. Further, upon written request, a trustee must provide an accounting within 60 days (with some limited exceptions).
It is very important for your attorney to serve an appropriate demand letter on the trustee. If your brother fails to timely respond, a Petition may be filed in Probate Court to compel them to account, to remove and replace them if they refuse, and to force them to pay for your attorney’s fees and costs caused by their refusal to act appropriately.
An omitted spouse or child may file a Petition in Probate Court for a statutory share of a decedent’s estate and, in the interim, may receive a family allowance. These types of proceedings often are hotly contested, as the opposing parties usually are the children from a prior marriage.
Acuña ❖ Regli has represented many omitted spouses and children. Please call us to schedule a complementary consultation.
Call Acuña ❖ Regli immediately. Forged deeds are not uncommon. Neither are documents signed by incompetent persons (dementia) or elders who are subject to undue influence.
A lawsuit must be filed promptly. Once the property is sold or deeded away, it is very difficult to recover. Further, if a claim is to be made as to incompetency or undue influence, the faster we can obtain doctor and other witness testimony, the stronger your case will be.
Unfortunately we have heard that same complaint from many of the professional fiduciaries we represent. Acuña ❖ Regli tries to respond to calls by the next business day. If your question requires further research, we will acknowledge receipt of your request and provide a time‑frame to respond.
Do not attempt to save money by performing all trust administration tasks yourself. As a professional fiduciary, you are held to a higher standard of care. It is important that you administer the trust according to the probate code and the trust document. Poorly drafted trusts can be mine fields for professional fiduciaries. Before you take a new case, allow us to conduct a trust review and provide recommendations. If you decide not to take the case, you will not be billed for our service.
Change attorneys. While attorneys sell their time and expertise, and should be paid for this, they should not be taxicabs. When you become our estate planning client, we do not charge for most e‑mail questions from our clients. Most questions can be answered simply and quickly and e‑mail takes much less time than playing “telephone tag.” However, if you ask a question that will require significant time to research and answer, or will require billable activity on our part, we will let you know before we start working.
Yes. Our firm acquires practices from retiring estate planning attorneys or the estates of estate planning attorneys who have died. We will assist you with winding up your practice by:
Assuming costs for telephone numbers, URLs, email accounts, and file storage;
- Giving all notices to clients required by the State Bar of California;
- Acting as custodian for your files, transmitting them according to your clients’ requests; and,
- Paying for your practice assets in full compliance with State Bar guidelines.
It is best to contact us well in advance of your retirement date. However, Acuña ❖ Regli has responded in emergencies when a death or unplanned retirement has occurred.