Estate & Business Succession Planning
An estate plan may include the preparation of the following documents:
- Advanced Health Care Directive
- Durable Power of Attorney for Finances
- Trust (various kinds)
- Funding Documents – the transfer of assets to your Trust (Certification of Trust, Declaration of Personal Property, Trust Transfer Deeds, etc.)
The first two documents appoints a third party to make medical or financial decisions for you according to your wishes as indicated in the document. The authority granted can be effective when you are deemed incompetent or immediatley. The Will controls the handling of your estate. Having a Will alone does not necessarily avoid the court process called Probate. You may use a Will to nominate a guardian for your minor children. Finally, holding assets in a Trust can help to avoid going through probate. A Trust allows for the continued administration of your assets when you are alive but not feeling well. A Trust can provide clarity to family and friends as to how and when to distribute you assets. Leaving clear instructions is appreciated when family members have conflicting needs.
Trust Administration & Probate
Both are processes by which assets held by the decedent’s estate and or the trust estate are managed.
Probate involves a petition to the court for the authority to manage and distribute assets held in the name of the decedent. The process requires being in court and paying court fees. The process can be avoided if the decedent, prior to death, created a Trust and transferred title to their assets to the Trustee of their Trust. There are various options to administer an estate if the total value of the estate does not exceed certain limits.
Trust Administration is available when a trust is created and assets have been properly transferred to the Trustee of the Trust. Changing title to assets so that they are held by the Trust is the funding stage. Once assets are held in Trust a trustee may administer those assets for the creator of the Trust. The creator may be referred to as a Grantor, Settlor or Trustor. The Trustee of the trust has to comply with the trust terms and with CA trust rules. Although there is a cost to the trust administration process they are usually less than that associated to a probate process. If you are appointed Trustee of a trust you owe legal responsibilities to the trust and its beneficiaries and may want to seek legal advise from an attorney as to those fiduciary obligations.
Conservatorship is needed when an adult is determined unable to make medical or health decisions for themselves. Conservatorship can be avoided if an adult, with the required mental capacity, executes a Durable Power of Attorney for Finances and or an Advance Health Care Directive. Conservatorship is a legal process by which someone (the conservator) petitions the court for the authority to act on behalf of someone else (the conservatee). The conservatorship can grant decision making authority over the person (medical, where they will live, right to contract etc.) and or over the estate (controlling the finances). Limited conservatorship refers to a child, with qualified disabilities, who will be or has turned 18 years old and continues to benefit from support.
A large part of an estate can be real property. Attorney Mrs. Mitchell will review the title to your property and ensure title properly reflects your ownership interest. Mrs. Mitchell can review purchase agreements, create real property agreements for co-owners, and review boundary concerns.