My Practice

Wills and Trusts

These are matters that are often postponed by families in the prime of their years because facing the possibility of an early demise is uncomfortable. If that describes you, consider what can happen should you die intestate (without a will or trust):

• The State determines who gets what
• Or the State determines who in your family will handle the estate distribution
• The court determines who will take care of your minor children
• Or a family member can petition the court for custody of your minor children

Do you really want those decisions made by the State or the courts? Do you really want a family member you don’t trust to raise your children? Of course, you don’t. That’s why it’s important to get these matters taken care of now!

Similarly, you want to make sure there is someone in place should you become disabled und unable to manage your affairs. Nothing is more painful than having the court appoint a conservator.

What’s better — a Will or a Trust?

That depends on how many assets you have. Pretty much anyone owning real estate (paid for or not) falls into the Trust category. Keep in mind that the current market value of your real estate holdings will be counted towards your assets, and the cost of probating a will is calculated as a percentage of your total assets. In most cases a Trust will preserve your heirs more of their inheritance.

I invite you to give me a call, and I will be happy to tell you what would be best for you after asking you a few questions. The call is free – 707-578.2310 or 415.483.5938.

Depending on your situation, there are many different types of trusts to consider that we’ll discuss when you’re ready to move forward:

• Special needs trusts
• Disclaimer trusts
• Bypass/credit trusts
• Revocable trusts
• Irrevocable trusts

All estate plans using trusts will include tax planning considerations, a durable power of attorney, advance healthcare directives, and a will or pour-over will.

If you have been named the trustee of a trust and need assistance with that or with probating a will, give me a call. There are many responsibilities that come with these duties that require attention to detail, such as:

• Notifications to beneficiaries and government offices
• Considering the best tax strategies and filing the proper forms
• Creating an inventory of assets and liabilities
• Paying the trustee’s fees
• Distributing the assets

Administering a trust or probating a will requires attention to detail, good record-keeping and good communication with the family. Unfortunately, families are under stress when people die, and the trustees or executors do not always keep good records or communicate well. I defend trustees and other fiduciaries, including attorneys-in-fact acting under a durable power of attorney, when conflicts arise and there are claims for surcharge or breach of fiduciary duty.

Similarly, if you are the beneficiary of a trust or a will and have concerns about how the trustee or executor is performing his duties, I can help. Often such problems are really about communication, but sometimes we have to go to court to enforce your rights.

International Considerations

Don’t be caught in tax traps and penalties for:

• Failing to report gifts from abroad of more than $100,000
• Failing to report money held in foreign accounts
• Naming a foreign person as the trustee of a trust
• Expatriation of U.S. citizens or legal permanent residents

What is your issue? Pick up the phone and let’s talk about it.
The call is free 707-578.2310 or 415.483.5938.

People living in the U.S. who want to get married in France may need help obtaining certain documents, such as a “Certificat de coutume.” I can work with you to prepare the documents you need to satisfy the French authorities. Similarly, a U.S. citizen who marries a French citizen may run into questions about prenuptial agreements and community property. These legal concepts are hard to translate and don’t mean the same thing in California and in France. I can help people work through these concepts and, if appropriate, draft an agreement.

Will Contests and Trust Litigation

I frequently represent trustees, executors, attorneys in fact and other fiduciaries when they get into a dispute with a disgruntled family member. I try to resolve such disputes without going to court. Often providing all the information and answering the family members’ questions can alleviate many problems. If necessary, however, I can represent a trustee in Probate Court.

I see these disputes arise in a number of ways:

• The trustee has not provided an accounting of what has been done with trust property during a period of years.
• The trustee has delayed for a year or more in distributing the property to the beneficiaries of the trust.
• The family members disagree about what to do with the “family home.” Some want to sell the house and divide the proceeds; others want to “keep the house in the family.”
• Family members disagree about who should receive certain items of personal property, such as the mother’s jewelry, or the father’s truck or medals.
• A family member believes that the person who died was “tricked” into giving property or money to someone. This might happen, for example, when someone who is not related by blood gets a large share of the estate.

There are countless examples of trust and estate litigation. I generally find that you have to deal with two broad issues. First, you need to focus on the legal issues and review the numbers. Second, you need to consider the emotional issues that often drive people in a family to go to court.

Trust and estate litigation can be heart-rending and terribly expensive. It can save you a lot of pain and money if you work with someone who can get quickly to the core of the legal questions and then evaluate how to resolve the personal conflicts.

Trust Administration

I often assist trustees and other fiduciaries as they carry out their duties, even when no one is complaining or threatening a lawsuit. I have found that trustees usually want to act in good faith and want to do the right thing and carry out their loved ones’ wishes. But they often don’t have the training, experience and time to do this on their own. There are things to be done that require some planning. For example, a trustee needs to decide whether she wants to receive compensation for her work as trustee. If she does—for that matter, even if she doesn’t—I recommend that she keep a journal in which she notes what she has done and how much time it took to accomplish these tasks. Trustees also must provide an accounting of what they have done with the trust property, so they need to follow certain rules when handling this money and property. The list is long and includes:

• Preparing and filing all required tax returns,
• Dealing with IRAs and retirement plans (real traps for the unwary!),
• Analyzing any potential for reassessment of real estate for property tax purposes,
• Dealing with the house or other real property, and
• Making sure all property is in the trust or taking steps to put it in the trust.

Probates

People sometimes die without having done a trust. That usually means that a petition for probate will be filed with the Probate Court. I can assist executors and administrators with this process. A full probate has a lot of formal steps, such as notifying creditors, notifying certain government agencies, filing an inventory and appraisal and filing a petition for distribution.

Even if someone has done a trust, he may have forgotten to put all his property in the trust. In this situation, the executor of the will may need to open a probate to transfer that property into the trust. This is done through the “pour-over” will, which states that property not already in the trust should be transferred into that trust.

I have succeeded on occasion in avoiding a probate of a “pour-over” will—with its attendant costs and delays—by filing a “Hegsstad petition” with the Probate Court. This petition argues that the decedent meant to put the property (say a house) into the trust but forgot to do so. If you find yourself in such a situation, I recommend consulting with an experienced attorney.