Pollock Law

Will

wpadmin — Tue, 29 Nov 2011 23:32:13 +0000

Many individuals elect to leave their property to their heirs by way of a “will.” Although this may be an acceptable alternative, if your estate assets do not total more than $100,000, or if you DO NOT own real estate, please keep in mind that a will must be probated and in order to pass title of your property to your heirs, it will require a court order. Consequently, the cost of probate, as discussed more thoroughly elsewhere in this website, may be considerable, which may indicate the advisability of using a trust, rather than a will.

Undivided Interest

wpadmin — Tue, 29 Nov 2011 23:31:51 +0000

Title to an undivided portion of an asset that is owned by two or more.

Trustor

wpadmin — Tue, 29 Nov 2011 23:31:31 +0000

The person(s) who establishes the Trust.

Trust Estate

wpadmin — Tue, 29 Nov 2011 23:30:51 +0000

All the assets transferred to the Living Trust in which title has been re-registered in the name of the Trustee and controlled by the terms of the living Trust.

Trustee

wpadmin — Tue, 29 Nov 2011 23:30:30 +0000

The individual(s) designated in the Declaration of Trust and charged with the fiduciary responsibility to carry out the terms and provisions of the Trustor(s) as stated in the Trust.

Trust

wpadmin — Tue, 29 Nov 2011 23:30:12 +0000

A legal entity established by a Trust agreement signed by a Trustor which directs the Trustee as to his or her duties and powers in managing property for the benefit of other(s). The Trust is governed by the terms and … Continue reading →

Totten Trust

wpadmin — Tue, 29 Nov 2011 23:29:02 +0000

Another method of using a bank account to transfer assets is to establish an account for the benefit of another person. In the law these are known as Totten Trusts. For example, an account “Mary Smith for the benefit of “Nancy Jones” can be managed by Mary during her lifetime and the funds would go to Nancy upon Mary’s death. Again, these funds will be included in Mary’s estate for estate tax purposes.

Settlor

wpadmin — Tue, 29 Nov 2011 23:28:40 +0000

A trust is a written, legal agreement between the individual creating the trust and the person or institution (the trustee) named to manage the assets held in the trust. In many cases, it is appropriate for the person creating the living trust (commonly known as a trustor, grantor or settlor) to be the initial trustee until management assistance of the trust is anticipated or required.

California Codes Of Civil Procedure

wpadmin — Tue, 29 Nov 2011 23:27:39 +0000

(Sections 704.910 — 704.995)

As used in this article:

(a) “Declared homestead” means the dwelling described in a homestead declaration.

(b) “Declared homestead owner” includes both of the following:

(1) The owner of an interest in the declared homestead who is named as a declared homestead owner in a homestead declaration recorded pursuant to this article.

(2) The declarant named in a declaration of homestead recorded prior to July 1, 1983, pursuant to former Title 5 (commencing with Section 1237) of Part 4 of Division 2 of the Civil Code and the spouse of such declarant.

(c) “Dwelling” means any interest in real property (whether present or future, vested or contingent, legal or equitable) that is a “dwelling” as defined in Section 704.710, but does not include a leasehold estate with an unexpired term of less than two years or the interest of the beneficiary of a trust.

(d) “Homestead declaration” includes both of the following:

(1) A homestead declaration recorded pursuant to this article.

(2) A declaration of homestead recorded prior to July 1, 1983, pursuant to former Title 5 (commencing with former Section 1237) of Part 4 of Division 2 of the Civil Code.

(e) “Spouse” means a “spouse” as defined in Section 704.710. 704.920. A dwelling in which an owner or spouse of an owner resides may be selected as a declared homestead pursuant to this article by recording a homestead declaration in the office of the county recorder of the county where the dwelling is located. From and after the time of recording, the dwelling is a declared homestead for the purposes of this article.

SECTION 704.930

(a) A homestead declaration recorded pursuant to this article shall contain all of the following:

(1) The name of the declared homestead owner. A husband and wife both may be named as declared homestead owners in the same homestead declaration if each owns an interest in the dwelling selected as the declared homestead.

(2) A description of the declared homestead.

(3) A statement that the declared homestead is the principal dwelling of the declared homestead owner or such person’s spouse, and that the declared homestead owner or such person’s spouse resides in the declared homestead on the date the homestead declaration is recorded.

(b) The homestead declaration shall be executed and acknowledged in the manner of an acknowledgment of a conveyance of real property by at least one of the following persons:

(1) The declared homestead owner.

(2) The spouse of the declared homestead owner.

(3) The guardian or conservator of the person or estate of either of the persons listed in paragraph (1) or (2). The guardian or conservator may execute, acknowledge, and record a homestead declaration without the need to obtain court authorization.

(4) A person acting under a power of attorney or otherwise authorized to act on behalf of a person listed in paragraph (1) or (2).

(c) The homestead declaration shall include a statement that the facts stated in the homestead declaration are known to be true as of the personal knowledge of the person executing and acknowledging the homestead declaration. If the homestead declaration is executed and acknowledged by a person listed in paragraph (3) or (4) of subdivision (b), it shall also contain a statement that the person has authority to so act on behalf of the declared homestead owner or the spouse of the declared homestead owner and the source of the person’s authority.

SECTION 704.940

A homestead declaration does not restrict or limit any right to convey or encumber the declared homestead. A homestead declaration, when properly recorded, is prima facie evidence of the facts therein stated, and conclusive evidence thereof in favor of a purchaser or encumbrancer in good faith and for a valuable consideration.

SECTION 704.950

(a) Except as provided in subdivisions (b) and (c), a judgment lien on real property created pursuant to Article 2 (commencing with Section 697.310) of Chapter 2 does not attach to a declared homestead if both of the following requirements are satisfied:

(1) A homestead declaration describing the declared homestead was recorded prior to the time the abstract or certified copy of the judgment was recorded to create the judgment lien.

(2) The homestead declaration names the judgment debtor or the spouse of the judgment debtor as a declared homestead owner.

(b) This section does not apply to a judgment lien created under Section 697.320 by recording a certified copy of a judgment for child, family, or spousal support.

(1) All liens and encumbrances on the declared homestead at the time the abstract of judgment or certified copy of the judgment is recorded to create the judgment lien.

(2) The homestead exemption set forth in Section 704.730.

SECTION 704.960

(a) If a declared homestead is voluntarily sold, the proceeds of sale are exempt in the amount provided by Section 704.730 for a period of six months after the date of sale.

(b) If the proceeds of a declared homestead are invested in a new dwelling within six months after the date of a voluntary sale or within six months after proceeds of an execution sale or of insurance or other indemnification for damage or destruction are received, the new dwelling may be selected as a declared homestead by recording a homestead declaration within the applicable six-month period. In such case, the homestead declaration has the same effect as if it had been recorded at the time the prior homestead declaration was recorded.

SECTION 704.965

If a homestead declaration is recorded prior to the operative date of an amendment to Section 704.730 which increases the amount of the homestead exemption, the amount of the exemption for the purposes of subdivision (c) of Section 704.950 and Section 704.960 is the increased amount, except that, if the judgment creditor obtained a lien on the declared homestead prior to the operative date of the amendment to Section 704.730, the exemption for the purposes of subdivision (c) of Section 704.950 and Section 704.960 shall be determined as if that amendment to Section 704.730 had not been enacted. 704.970. Whether or not a homestead declaration has been recorded:

(a) Nothing in this article affects the right of levy pursuant to a writ of execution.

(b) Any levy pursuant to a writ of execution on a dwelling (as defined in Section 704.710) and the sale pursuant thereto shall be made in compliance with Article 4 (commencing with Section 704.710) and the judgment debtor and the judgment creditor shall have all the rights and benefits provided by that article.

SECTION 704.980

(a) A declared homestead may be abandoned by a declaration of abandonment under this section, whether the homestead declaration was recorded pursuant to this article or pursuant to former Title 5 (commencing with former Section 1237) of Part 4 of Division 2 of the Civil Code.

(b) A declaration of abandonment shall be executed and acknowledged in the manner of an acknowledgment of a conveyance of real property. It shall be executed and acknowledged by a declared homestead owner or by a person authorized to act on behalf of a declared homestead owner. If it is executed and acknowledged by a person authorized to act on behalf of a declared homestead owner, the declaration shall contain a statement that the person has authority to act on behalf of the declared homestead owner and the source of the person’s authority.

(c) The declaration of abandonment does not affect the declared homestead of any person other than the declared homestead owner named in the declaration of abandonment.

SECTION 704.990

(a) A declared homestead is abandoned by operation of law as to a declared homestead owner if the declared homestead owner or a person authorized to act on behalf of the declared homestead owner executes, acknowledges, and records a new homestead declaration for the declared homestead owner on different property. An abandonment under this subdivision does not affect the declared homestead of any person other than the declared homestead owner named in the new homestead declaration.

(b) Notwithstanding subdivision (a), if a homestead declaration is recorded which includes property described in a previously recorded homestead declaration, to the extent that the prior homestead declaration is still valid, the new homestead declaration shall not be considered an abandonment of the prior declared homestead.

SECTION 704.995

(a) The protection of the declared homestead from any creditor having an attachment lien, execution lien, or judgment lien on the dwelling continues after the death of the declared homestead owner if, at the time of the death, the dwelling was the principal dwelling of one or more of the following persons to whom all or part of the interest of the deceased declared homestead owner passes:

(1) The surviving spouse of the decedent.

(2) A member of the family of the decedent.

(b) The protection of the declared homestead provided by subdivision (a) continues regardless of whether the decedent was the sole owner of the declared homestead or owned the declared homestead with the surviving spouse or a member of the decedent’s family and regardless of whether the surviving spouse or the member of the decedent’s family was a declared homestead owner at the time of the decedent’s death.

(c) The amount of the homestead exemption is determined pursuant to Section 704.730 depending on the circumstances of the case at the time the amount is required to be determined.

SECTION 704.730

(a) The amount of the homestead exemption is one of the following:

(1) Fifty thousand dollars ($50,000) unless the judgment debtor or spouse of the judgment debtor who resides in the homestead is a person described in paragraph (2) or (3).

(2) Seventy-five thousand dollars ($75,000) if the judgment debtor or spouse of the judgment debtor who resides in the homestead is at the time of the attempted sale of the homestead a member of a family unit, and there is at least one member of the family unit who owns no interest in the homestead or whose only interest in the homestead is a community property interest with the judgment debtor.

(3) One hundred fifty thousand dollars ($150,000) if the judgment debtor or spouse of the judgment debtor who resides in the homestead is at the time of the attempted sale of the homestead any one of the following:

(A) A person 65 years of age or older.

(B) A person physically or mentally disabled and as a result of that disability is unable to engage in substantial gainful employment. There is a rebuttable presumption affecting the burden of proof that a person receiving disability insurance benefit payments under Title II or supplemental security income payments under Title XVI of the federal Social Security Act satisfies the requirements of this paragraph as to his or her inability to engage in substantial gainful employment.

(C) A person 55 years of age or older with a gross annual income of not more than fifteen thousand dollars ($15,000) or, if the judgment debtor is married, a gross annual income, including the gross annual income of the judgment debtor’s spouse, of not more than twenty thousand dollars ($20,000) and the sale is an involuntary sale.

(b) Notwithstanding any other provision of this section, the combined homestead exemptions of spouses on the same judgment shall not exceed the amount specified in paragraph (2) or (3), whichever is applicable, of subdivision (a), regardless of whether the spouses are jointly obligated on the judgment and regardless of whether the homestead consists of community or separate property or both. Notwithstanding any other provision of this article, if both spouses are entitled to a homestead exemption, the exemption of proceeds of the homestead shall be apportioned between the spouses on the basis of their proportionate interests in the homestead.

Springing Durable Power Of Attorney

wpadmin — Tue, 29 Nov 2011 23:26:34 +0000

A durable power of attorney that takes effect only when and if the principal becomes incapacitated.

Spendthrift Provision

wpadmin — Tue, 29 Nov 2011 23:26:13 +0000

This prohibits a beneficiary of a trust from using (spending) the anticipated mist benefits before they receive their share.

Separate Property

wpadmin — Tue, 29 Nov 2011 23:25:51 +0000

All property owned by a person before marriage and all property acquired after marriage by gift bequest, devise or descent, together with rents, issues and profits thereof. Either spouse may convey, encumber or otherwise dispose of his or her separate … Continue reading →

Revocable Living Trust

wpadmin — Tue, 29 Nov 2011 23:25:28 +0000

The “Trust Masters Home Protection Agreement” is a revocable living trust. It is sometimes referred to as a revocable inter vivos trust or a grantor trust. A revocable living trust may be amended or revoked by the person creating it, at any time during the trustor’s lifetime, as long as the trustor is competent.

Revocable Inter Vivos Trust

wpadmin — Tue, 29 Nov 2011 23:25:06 +0000

Reversion, Not By Way of

wpadmin — Tue, 29 Nov 2011 23:24:45 +0000

This phrase deals with the residue of the estate if all specified beneficiaries have died and how it is distributed to heirs. Not by way of reversion simply means that such distribution would not be made by act of the … Continue reading →

Remainder Interest

wpadmin — Tue, 29 Nov 2011 23:24:23 +0000

Ownership of property left in trust after a previous owner or the life tenant received all the property benefits to which they were entitled.

Qualified Terminable Interest Property

wpadmin — Tue, 29 Nov 2011 23:24:03 +0000

This term refers to property which the surviving spouse has the right to all income for life and the remainder passes to other beneficiaries designed by the first spouse to pass away.

Pro Rata

wpadmin — Tue, 29 Nov 2011 23:17:09 +0000

A Latin term meaning to divide, share or distribute or assess proportionally.

Problems of Guardianship

wpadmin — Tue, 29 Nov 2011 23:16:48 +0000

With a trust, when minors are the beneficiaries the trustee can manage and invest the trust funds, free of the costs and restrictions that arise when a court must appoint a guardian of the property until the beneficiary comes of age.

Additionally, with a trust, you can continue the management of a beneficiary’s assets to whatever age you desire; certainly beyond age 18 (the age at which ALL guardianships must terminate).

Probate Costs

wpadmin — Tue, 29 Nov 2011 23:16:27 +0000

When property passes through probate, you incur executor’s fees, attorney’s fees and court costs, all of which can be quite substantial depending on the size of your estate. These are fees generally set by state law and are usually based entirely on the size of the estate being probated rather than on the amount of time and work involved. There may also be additional extraordinary expenses of probate (i.e., tax returns, life insurance, etc.).

Probate, Ancillary

wpadmin — Tue, 29 Nov 2011 23:16:06 +0000

A probate proceeding conducted in a different state from the one the deceased person resided in at the time of death. Usually, ancillary probate proceedings are necessary if the deceased person owned real estate in another state.

Probate

wpadmin — Tue, 29 Nov 2011 23:15:46 +0000

The court-supervised process by which a will is determined to be the will-maker’s final statement regarding how the will-maker wants his or her property distributed. It also confirms the appointment of the personal representative of the estate. Probate also means the process by which assets are gathered; applied to pay debts, taxes, and expenses of administration; and distributed to those designated as beneficiaries in the will.

Principle of Representation

wpadmin — Tue, 29 Nov 2011 23:15:26 +0000

Under this principle, the issue of a deceased beneficiary shares equally in the share of their deceased parent not equally with the other beneficiaries. As an example– if two children passed away, one leaving two of his/her own children and one leaving three of his/her own children, the family with two children would divide up their parent’s share and the family with three children would divide up their parent’s share.

Principal

wpadmin — Tue, 29 Nov 2011 23:15:05 +0000

A power of attorney is a document authorizing someone to act on your behalf. You determine how much power the person will have over your affairs. Your power of attorney may be a general or limited power of attorney. A general power of attorney authorizes your agent to conduct your entire business and affairs. A limited or special power of attorney authorizes your agent to conduct specified business, perform specified acts, or make certain decisions on your behalf. In any power of attorney, you are considered to be the principal and the person to whom you assign the power is your agent or attorney-in-fact. Your attorney-in-fact does not have to be a lawyer, but it should be someone you trust a great deal.

Power of Attorney

wpadmin — Tue, 29 Nov 2011 23:14:44 +0000

Power of Appointment

wpadmin — Tue, 29 Nov 2011 23:14:20 +0000

The surviving Trustor’s right to designate the entire trust or a portion of the trust that is to qualify for the marital deduction to himself/herself or to his or her estate exercisable during his or her lifetime. In other words, … Continue reading →

Pour Over Will Provision

wpadmin — Tue, 29 Nov 2011 23:13:55 +0000

As the name implies a pour-over Will is used to transfer property to a Trust that was not transferred to the Trust during the lifetime of the Trustor. Any asset could be transferred to a Trust after the Trustor(s) death through the means of a pour-over Will. It provides for a uniform disposition of your property under the provisions of the Trust. The pour-over Will document accompanies the Trust document. One should not rely upon the pour-over Will to fund ones Trust, since there is a limit of only sixty thousand dollars ($60,000.00) before probate is required.

Perpetuities, Rule Against

wpadmin — Tue, 29 Nov 2011 23:13:35 +0000

The perpetuities clause in the Trust provides that the trusts contained in them terminate automatically at a required time. This protects the legality of the Trust and protects against property being frozen in a mist beyond a certain period of … Continue reading →

Partnerships And Corporations

wpadmin — Tue, 29 Nov 2011 23:13:14 +0000

There are situations in which the formation of a partnership or a corporation would be advisable. If you have questions about this area, you should obtain legal and tax advice.

Natural Death Act Declaration

wpadmin — Tue, 29 Nov 2011 23:12:54 +0000

Previously executed Durable Powers of Attorney for Health Care and Natural Death Act Declarations remain valid. Thus, unless your existing DPAHC has expired, you do not have to complete a new Advance Health Care Directive. Because the new Advance Health Care Directive gives you more flexibility to state your health care desires, you may wish to complete the new form even if you previously completed a DPAHC or Natural Death Act Declaration. At a minimum, you should review your existing DPAHC or Natural Death Act Declaration to make sure it has not expired and that it still accurately reflects your wishes.

My Estate Plan

wpadmin — Tue, 29 Nov 2011 23:12:35 +0000

My Estate Plan has been designed to help you create your own home protection plan, in 3 easy steps. A straightforward questionnaire can be completed by you, at your convenience. A glossary of all terminology in the estate plan and a FAQ’s (Frequently Asked Questions) page are available for your reference. During business hours, an attorney experienced in estate planning is always available to help you with any questions.

Minor

wpadmin — Tue, 29 Nov 2011 23:12:16 +0000

A person who is under the legal age to be considered an adult. In California, that age is eighteen (18).

Marital Deduction

wpadmin — Tue, 29 Nov 2011 23:11:55 +0000

It is an unlimited tax credit under federal estate taxes. To qua1ify for this marital deduction, the property or income from the property must pass to the surviving spouse.

Living Will

wpadmin — Tue, 29 Nov 2011 23:11:33 +0000

The Advance Health Care Directive is now the legally recognized format for a living will in California. The Advance Health Care Directive allows you to do more than the traditional living will, which only states your desire not to receive life-sustaining treatment if you are terminally ill or permanently unconscious. An Advance Health Care Directive allows you to state your wishes about refusing or accepting life-sustaining treatment in any situation in which you are unable to make your own decisions, not just when you are in a coma or are terminally ill.

Living Trust

wpadmin — Tue, 29 Nov 2011 23:11:11 +0000

A legal document that allows an individual (the grantor or trustor) to create a trust and appoint someone else as trustee (usually a trusted individual or bank) to carefully invest and manage his or her assets.

Joint Tenancy

wpadmin — Tue, 29 Nov 2011 23:10:46 +0000

A considerable number of individuals hold title to their real property in “joint tenancy with right of survivorship.” This is usually done between a husband and wife. Holding title to real estate in this manner will assure that upon the death of the first joint tenant, title will pass to the surviving joint tenant, which process can be perfected with a minimum of effort and cost. However, problems start to arise when the surviving joint tenant wants to then pass title to his or her heirs, usually the children.

Issue

wpadmin — Tue, 29 Nov 2011 22:51:05 +0000

Direct lineal descendants — children, grandchildren, great grandchildren which may include adopted children if so defined in the Trust.

Inter Vivos Trust

wpadmin — Tue, 29 Nov 2011 22:50:44 +0000

A Trust established by an individual during his or her lifetime, also known as a Living Trust

Insurance Polices

wpadmin — Tue, 29 Nov 2011 22:50:24 +0000

Life insurance policy proceeds are not subject to probate except where you name your own estate as the beneficiary. The purchase of a policy of life insurance, therefore, can allow for the transfer of substantial amounts of money without the … Continue reading →

In Kind

wpadmin — Tue, 29 Nov 2011 22:50:07 +0000

A distribution of a specific asset rather than the monetary equivalent of the asset.

Income

wpadmin — Tue, 29 Nov 2011 22:49:48 +0000

This refers to return on investment as calculated by generally accepted accounting procedures. It is the interest paid on a bank account or dividends paid on stock.

Incapacity

wpadmin — Tue, 29 Nov 2011 22:49:29 +0000

By reason of physical or mental impairment a Trustor is unable to manage his or her own affairs.

Homestead Laws

wpadmin — Tue, 29 Nov 2011 22:49:06 +0000

The federal Homestead Act, which was enacted in 1862, offered free 160-acre parcels of land to anyone willing to settle on them. After five years, these “homesteaders” would become the owners of the land, as long as certain conditions were met (such as building a house and living on the property). Though this act was repealed in 1976, many states have enacted their own homestead laws. If your state has one, it may protect some or all of the equity in your home against certain creditor claims.

Homestead

wpadmin — Tue, 29 Nov 2011 22:48:47 +0000

A Declaration of Homestead allows you, the homeowner, to exempt up to $150,000.00 (under certain circumstances) from a judgment which a creditor may obtain against you. A Declaration of Homestead is a simple legal document which can help to protect your house and property in times of economic hardship… it’s a short form that can sometimes prevent the attachment of your land and dwelling by creditors.

Heir

wpadmin — Tue, 29 Nov 2011 22:48:29 +0000

A person who, under the laws of the state, would be entitled to share in the assets of a deceased individual.

Healthcare Power Of Attorney

wpadmin — Tue, 29 Nov 2011 22:48:11 +0000

Durable Power of Attorney for Property Management deals with assets which have not been transferred to your living trust prior to your incapacity or which you may receive after your incapacity. In such a power, you appoint another individual (attorney-in-fact) to make property management decisions on your behalf. This document, however, cannot replace the living trust, inasmuch as, among other things, it cannot dispose of your assets in accordance with your wishes at your death.

Head Of Household

wpadmin — Tue, 29 Nov 2011 22:47:50 +0000

Generally speaking, homestead exemptions apply only to married couples and their families. (Some states do have a head-of-household exemption that covers two or more people living as a family unit, provided one person supports the other members of the group.)

Guardian & Guardianship

wpadmin — Tue, 29 Nov 2011 22:47:31 +0000

This is a person who has been given a legal responsibility for the person of a minor child (under the age of eighteen in California) of a deceased individual by such individuals Will.

Gross Estate

wpadmin — Tue, 29 Nov 2011 22:47:11 +0000

A term describing the total value of all the assets before any type of deduction or expenditures.

Grantor Trust

wpadmin — Tue, 29 Nov 2011 22:46:50 +0000

Grantor

wpadmin — Tue, 29 Nov 2011 22:46:30 +0000

Gifts

wpadmin — Tue, 29 Nov 2011 22:46:07 +0000

Especially where you face life-threatening circumstances, a gift to people you would want to have a particular item or a certain amount of money after your death may be appropriate before you die. Property transferred by gift avoids probate. A … Continue reading →

Fiduciary

wpadmin — Tue, 29 Nov 2011 22:45:48 +0000

A person who acts for another person that is held to the highest standard of care and honesty.

Executor

wpadmin — Tue, 29 Nov 2011 22:45:15 +0000

An individual or other entity named in a Will to manage and distribute the assets of the person making the Will after his or her death.

Estate Taxes

wpadmin — Tue, 29 Nov 2011 22:44:34 +0000

For married grantors, the estate tax liability which would otherwise be due at the death of the survivor can be greatly reduced or completely eliminated by proper planning. This planning can be accomplished in a living trust (although it can also be accomplished through wills, this would require a separate probate at the death of each spouse). How much can be saved depends on the size of the estate and the estate tax laws at the time of the surviving spouse’s death. At the same time, the trust can also insure that the estate of the first spouse to die will ultimately go to his or her children (or heirs) even though the surviving spouse is provided the lifetime economic benefit of all assets and has complete management and control over the entire trust.

Education

wpadmin — Tue, 29 Nov 2011 22:44:11 +0000

For purpose of the Declaration of Trust “education shall include, unless you specify otherwise, education at public or private high school. Including boarding schools; undergraduate and graduate study in a college or other institution of higher learning and any specialized … Continue reading →

Durable Special Power of Attorney

wpadmin — Tue, 29 Nov 2011 22:43:51 +0000

A document for the specific purpose of appointing an individual(s) to transfer any asset left out of your Trust into your Trust.

Durable Power of Attorney For Health Care

wpadmin — Tue, 29 Nov 2011 22:43:30 +0000

Durable Power of Attorney For Property

wpadmin — Tue, 29 Nov 2011 22:43:09 +0000

A durable power of attorney for health care (also known as an Advanced Health Care Directive — AHCD or Healthcare Power of Attorney) allows your attorney-in-fact to make health care decisions for you when you can no longer make them yourself. It may also contain statements of wishes concerning such matters as life sustaining treatment and other health care issues and instructions concerning organ donation, disposition of remains and your funeral.

Durable Power of Attorney

wpadmin — Tue, 29 Nov 2011 22:42:49 +0000

A legal document that allows an individual (the principal) an opportunity to authorize an agent (usually a trusted family member or friend) to make legal decisions for when the person is no longer able to do so themselves.

When a power of attorney is considered durable, it remains valid even if you become incompetent or incapacitated. An ordinary power of attorney expires if a person becomes unable to make his or her own decisions. Durable powers of attorney can be prepared either to take effect immediately or to go into effect only if and when you become unable to make decisions for yourself (a springing durable power of attorney). The power of attorney form should indicate what kind of power of attorney you want. You may want to consult an attorney regarding the type of power of attorney you want.

Disclaimer of Interest

wpadmin — Tue, 29 Nov 2011 22:42:28 +0000

The legal act of renouncing an inheritance which would then, in turn, pass to another beneficiary.

Declaration of Homestead

wpadmin — Tue, 29 Nov 2011 22:42:09 +0000

Declarant

wpadmin — Tue, 29 Nov 2011 22:41:44 +0000

A declarant, generally speaking, is anyone who composes and signs a statement or declaration alleging that the information he has given therein is true. This differs from an affiant, as in the case of an affidavit the facts therein are sworn to before an notary public or other official, whereas a declaration is usually made by one person for the use of another.

Conservator & Conservatorship

wpadmin — Tue, 29 Nov 2011 22:41:19 +0000

A person appointed by the court who is responsible for you if you were to become incompetent. A conservator maybe of the “person’ i.e. taking care of person to assure that he or she has food, shelter, etc. or of … Continue reading →

Continuity of Management

wpadmin — Tue, 29 Nov 2011 22:40:53 +0000

Creating a living trust can furnish needed attention to your assets. A living trust permits you and/or your appointed trustee to take timely advantage of investment opportunities and. conversely, to dispose of investments no longer desirable. With a living trust, you set up the machinery to provide a continuity of management at death and the immediate shift of income from yourself to your beneficiaries at your death.

Community Property

wpadmin — Tue, 29 Nov 2011 22:40:29 +0000

Both real and personal property that was acquired by the husband and wife during the course of their marriage as a result of either spouse’s employment Husband has a one-half undivided interest and wife has a one-half undivided interest. It … Continue reading →

Codicil

wpadmin — Tue, 29 Nov 2011 22:23:20 +0000

An addition to an existing Will. The Codicil may modify, add to, or subtract from or revoke provisions in the Will. The Codicil is a separate document. it is executed with the same formalities as a Will. The Codicil, itself, … Continue reading →

Bond

wpadmin — Tue, 29 Nov 2011 22:22:59 +0000

A guarantee by a bonding company agreeing to make up for any loss, negligently or criminally caused by an executor.

Bona Fide Residence of the Claimant

wpadmin — Tue, 29 Nov 2011 22:22:39 +0000

Fortunately, homestead laws are usually – in legal terms – “liberally construed”. An apartment (if you own it), a mansion, a cabin, or a tent can qualify as a homestead… provided the dwelling is the bona fide residence of the … Continue reading →

Bequest

wpadmin — Tue, 29 Nov 2011 22:22:14 +0000

Refers to leaving personal property by Will.

Beneficiary

wpadmin — Tue, 29 Nov 2011 22:21:45 +0000

A person for whom a Trust is managed and who eventually receives a portion or all of the trust property. Also may be the recipient of gifts in a Will.

Trust Masters Document Vault

wpadmin — Tue, 29 Nov 2011 22:19:22 +0000

My Estate Plan documents are safely stored in the Trust Masters Document Vault, for your future reference and easy retrieval. The Trust Masters Vault provides high-capacity data storage with SSL protocol to protect the confidentiality and security of your documents. You can rest easy knowing that your My Estate Plan is always safe. The highest level of data encryption, a personal security registration code and user assigned password afford complete protection and privacy.

Attorney-In-Fact

wpadmin — Tue, 29 Nov 2011 22:18:11 +0000

A person named by you to act on your behalf. The person you name as your attorney in fact under your Durable Special Power of Attorney may transfer assets into your trust. The person you name as your attorney in fact under your Durable Power of Attorney for Health Care may make health care decisions for you, if and only if you are not able to make your own health care decisions for yourself.

Descendant

wpadmin — Tue, 29 Nov 2011 22:14:27 +0000

A direct ancestor of yours. This would be your child, then grandchild, great grandchild, great-great grandchild, etc.

Decedent

wpadmin — Tue, 29 Nov 2011 22:11:05 +0000

A person who has died.

Child(ren)

wpadmin — Tue, 29 Nov 2011 22:10:00 +0000

Refers to child(ren) born of the Trustors which includes adopted children unless you expressly state that adopted children are to be excluded.

Amendment

wpadmin — Tue, 29 Nov 2011 21:47:05 +0000

This is a legal document by which you change the provisions or add provisions to the Declaration of Trust. It is a separate document and is executed with the same formalities as the Trust. The Amendment, itself, can be changed … Continue reading →

Alternatives to the Living Trust

wpadmin — Tue, 29 Nov 2011 21:40:19 +0000

The Will:

Joint Tenancy:

It is not always advisable to hold title in joint tenancy (with right of survivorship) with your children, or anyone you may want to pass title after your death, for several reasons:

1. If you add your child(ren) as joint tenants on your title, and, for example, your child is married, you could find yourself embroiled in litigation if your child’s spouse decides to get a divorce and seeks a “community property” interest in your home during the divorce proceedings. You could conceivably end up with your son or daughter’s spouse as a part owner of your home. That is not a very pleasant thought for many parents.

2. A second common reason for avoiding holding title to your property in “joint tenancy with right of survivorship” (unless, of course, the joint tenant is your spouse) is if the joint tenant experiences financial problems. Often, children who are “joint tenants” with their parents may find themselves in financial trouble, in which event their creditors may look to the child’s interest in your home to satisfy the creditor’s claim or judgment. Being forced to sell your property because of the debts of your joint tenant is, again, not a very pleasant thought.

Of course, there are numerous other situations wherein “joint tenancy with right of survivorship” would not be in your best interests and where a revocable trust would serve you far better.

MISCELLANEOUS ISSUES

Following are other issues that are related to your estate planning needs.

Partnerships and Corporations:

There are situations in which the formation of a partnership or a corporation would be advisable. If you have questions about this area, you should obtain legal and tax advice.

Bank accounts:

One technique for the transfer of assets is through bank accounts. You can put your funds in a joint account with another person and upon your death, that person will have the right to the funds in that account. This is a specialized form of joint ownership. For tax purposes, all those funds will be regarded as included in your estate, however.

Another method of using a bank account to transfer assets is to establish an account for the benefit of another person. In the law these are known as Totten Trusts. For example, an account “Mary Smith for the benefit of “Nancy Jones” can be managed by Mary during her lifetime and the funds would go to Nancy upon Mary’s death. Again, these funds will be included in Mary’s estate for estate tax purposes.

Insurance Policies:

Life insurance proceeds will usually be included in determining the size of your estate for estate tax purposes. For example, if you own a life policy that pays a $500,000 benefit, that will be added to your gross taxable estate. Therefore, if you have other assets worth $150,000, your estate would be subject to estate taxes.

If however, you neither own the policy nor have any means of exercising control over it, the policy will not be included in your taxable estate. For this reason, some people purchase a life insurance policy on their life, transfer ownership over it to another person, and then make annual gifts of the amount of the premiums on the policy. This will effectively transfer substantial assets upon death without either probate or estate taxes.

There are a wide variety of forms of life insurance on the market today and you may want to investigate your options as a part of an overall financial plan.

Additionally, life insurance policies may provide for current income to you now if you are disabled with AIDS. There are a number of companies that will in effect buy out the policy’s benefits to provide you with cash now. Most insurance companies will do this as well.

Gifts:

Remember to do anything needed to complete the gift. This may mean formally transferring title by deed, pink slip or other means. At the very least, it means relinquishing control over the item to the person you are giving it to. Where no document of title is needed, write out a letter indicating the specific things being given and have it notarized if possible.

Note that there may be tax consequences connected with gifts. Gifts in excess of $11,000 per person per year require a federal gift tax return. Gifts during your lifetime in excess of $11,000 per person per year are accumulated for purposes of determining the $1.2 million threshold for estate tax purposes. This can be, however a viable means of distributing one’s estate and avoid probate.

When combined with insurance policies, it can provide for a very large tax-free gift. For example, if you purchase a policy of insurance on your life, the value of it is normally included in your taxable estate, whether you pass the proceeds through your Will or not. However, if you transfer ownership of the policy to another person, and retain no ability to change beneficiaries or otherwise control the policy, it will not be part of your taxable estate. You can then make a gift each year of the amount of the premiums to the person to whom you gave the ownership of the insurance policy. Then, upon your death, that person or the beneficiary of the policy will get the value of the policy tax-free.

See an insurance specialist, attorney or financial planner for more information about how this can work for you.

ISSUES REGARDING THE REVOCABLE TRUST:

A Living Trust does not have to go through the court probate process. Assets can be distributed immediately and you can determine what, if anything, the person administering your estate should be paid for their services in your trust.

There are some disadvantages to living trusts. Since they are not supervised by the court, there is no guarantee that your estate will be properly handled. There is, however, a procedure for beneficiaries to bring the process before the court should the need arise.

Additionally, the creditor protection available through probate is not available with trusts. Your successor trustee must make certain that all your proper debts are paid before distribution or creditors retain the right to collect from persons who inherit from you after distribution.

Basically, if you have a person who you can trust to follow your wishes, who is capable of handling the required transactions and who has the time and patience to take care of these matters, you may wish to consider using a living trust.

Agent

wpadmin — Tue, 29 Nov 2011 20:36:02 +0000

(California Probate Code Section 4701)

You have the right to give instructions about your own health care. You also have the right to name someone else to make health care decisions for you. The AHCD form lets you do either or both of these things. It also lets you express your wishes regarding donation of organs and the designation of your primary physician. If you use this AHCD form, you may complete or modify all or any part of it.

Part 1 of this form is a power of attorney for health care. Part 1 lets you name another individual as agent to make health care decisions for you if you become incapable of making your own decisions or if you want someone else to make those decisions for you now even though you are still capable. You may also name an alternate agent to act for you if your first choice is not willing, able, or reasonably available to make decisions for you. (Your agent may not be an operator or employee of a community care facility or a residential care facility where you are receiving care, or your supervising health care provider or employee of the health care institution where you are receiving care, unless your agent is related to you or is a coworker.)

Unless the form you sign limits the authority of your agent, your agent may make all health care decisions for you. This form has a place for you to limit the authority of your agent. You need not limit the authority of your agent if you wish to rely on your agent for all health care decisions that may have to be made. If you choose not to limit the authority of your agent, your agent will have the right to:

(a)Consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition.

(b)Select or discharge health care providers and institutions.

(d)Direct the provision, withholding, or withdrawal of artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation.

(e) Make anatomical gifts; authorize an autopsy, and direct disposition of remains.

Part 2 of this form lets you give specific instructions about any aspect of your health care, whether or not you appoint an agent.

Choices are provided for you to express your wishes regarding the provision, withholding, or withdrawal of treatment to keep you alive, as well as the provision of pain relief. Space is also provided for you to add to the choices you have made or for you to write out any additional wishes. If you are satisfied to allow your agent to determine what is best for you in making end-of-life decisions, you need not fill out Part 2 of this form.

Part 3 of this form lets you express an intention to donate your bodily organs and tissues following your death.

Part 4 of this form lets you designate a physician to have primary responsibility for your health care.

After completing this form, sign and date the form at the end.

The form must be signed by two qualified witnesses or acknowledged before a notary public. Give a copy of the signed and completed form to your physician, to any other health care providers you may have, to any health care institution at which you are receiving care, and to any health care agents you have named. You should talk to the person you have named as agent to make sure that he or she understands your wishes and is willing to take the responsibility.

You have the right to revoke this advance health care directive or replace this form at any time.

Bank Accounts

wpadmin — Tue, 29 Nov 2011 20:02:44 +0000

Advanced Health care Directive (AHCD)

wpadmin — Tue, 29 Nov 2011 19:25:11 +0000