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Torrance Elder Law Blog

Contesting a will

Individuals and family members in California who feel a will is incorrect or unfair may choose to contest, or challenge, it. It can be difficult to properly contest a will, and it is not successful in most circumstances. It is important to know who can contest it and for what reasons.

According to Consumer Reports, only an interested party can take part in contesting a will. While an interested party does not have to be related to the deceased, he or she does have to be someone who would inherit by law or is already in the will. State laws determine exactly what a surviving spouse is entitled to inherit, but many of them ensure that the spouse is due a certain minimum amount, so if the will does not demonstrate that, the spouse can often successfully challenge it.

How can you protect your family from estate disputes?

Since the California probate process can be long, difficult, and lead to disputes over the estate, many people look for ways to avoid it altogether. Estate planning is one tool that can be used to keep some assets out of probate and establish a clear picture of your final wishes.

As the New York Times reports, trusts are a very popular way to avoid probate court. You will need to consult with a lawyer to set up a trust, and the costs can range from $500 up to $20,000, but this is one way to keep your assets out of probate and determine ownership after death yourself. While some people transfer bank accounts to their children before they die, some experts warn that this can cause familial strife. Since people are living longer, healthier lives, this can put children in a position of controlling the purse strings for a significant amount of time, allowing resentment to grow. There are payable on death accounts that allow for easy transfer, or you can establish a limited partnership to ensure transfer of funds. While it may be tempting to put your home into a child's name in advance, if he or she runs into financial trouble your property will be considered an asset that a creditor can seize in a bankruptcy.

Estate planning may consist of more than transferring assets

Some individuals may find it intimidating to consider what will happen when they are gone, perhaps even more so to plan for it. However, having a plan in place for life's unexpected turns can be exceedingly beneficial, and exploring the available options could help you overcome similar reservations.

When thinking about a similar process, your first thought may turn to the distribution of assets upon your death. Although a plan could cover this area, there are numerous estate planning benefits that might not even require you to have an actual estate.

Probate basics

In the state of California, whether you have a written will or not, your estate will go through probate upon your death, if it meets a minimum threshold and you do not have a living trust. Here at The Law Office of Matthew C. Yu, we understand the intricacies of probate law, and we help our clients through the process.

According to the California Courts, probate is a process through which the court analyzes several factors, including outstanding debts connected to your estate, as well as the division of assets among your heirs. The court will first determine if you had a valid will, then distribute your estate accordingly. If you do not have a will, the court must follow the state's intestacy law. It will also appoint an administrator to execute the division of your estate. Otherwise, the executor of the estate that you have appointed in your will is responsible for putting your estate in order. This process, including the payment of remaining debt as well as the collection and distribution of assets, may take more than a year to complete under the court's supervision.

Probate and sibling disputes

Sibling feuds are an age-old familiarity to most California residents, yet fighting over a decedent's estate is another matter. Probate is the court-supervised process of collecting a decedent's assets, paying those who are owed money and distributing the rest of heirs. A probate can consist of lengthy paperwork that can very from process to process. 

Typically, a probate involves a number of individuals, including the executor (or the person named responsible in the decedent's will), and a number of close family members and friends. If the decedent does not leave behind a will, the probate court may select another individual to handle the process.

Conservatorship is tough love for your parent

It is understandable that you have put off the decision to seek conservatorship of your aging parent. Perhaps you hoped the symptoms were temporary and not signs of dementia or Alzheimer's. Maybe your siblings have balked at the idea, refusing to admit your parent is changing and needs someone to protect his or her interests.

Despite the hesitation and contradiction, you feel this is right for your parent. With conservatorship, you will be able to manage your parent's finances and other essential affairs. However, without the consent of your siblings, you may have a battle on your hands.

Handling debt after death

After a loved ones dies in California, people may think that all of their debt dies with them. However, this is often not the case. It is important to understand what happens to debt after death.

When loved ones leave debt behind, many people have questions about how they should handle these financial obligations. The Federal Trade Commission says that debt is still considered to be valid after death. Usually, the family of the deceased does not pay this debt. There may be circumstances, though, in which someone is considered to be obligated to repay it. As California is a community property state, people may find that a loved one’s creditors turn to them for repayment. Additionally, co-signers on the deceased’s financial obligations are generally required to pay the debt.

Trusting the estate planning process

It can be challenging to plan for every change in life. Certain life events are sudden occurrences that may catch you off guard, while others may simply seem difficult to consider, such as death. However, taking measures ahead of time to avoid potentially undesirable consequences might be in your best interests.

Perhaps you already have a will in place, but you may want to set something up that will survive after you are gone. You could consider setting up a trust, and with numerous trust options available to suit your needs, acquiring guidance could help you make informed decisions throughout the process.

What goes to probate court upon a person’s death?

You may have heard someone say that something is in probate after a person's death. This refers to the California probate court that handles estates after a person dies. Not everything goes to court, though. According to the Superior Court of California, the court only steps in when it needs to because the law outlines who are heirs to an estate and how estates must be divided. In addition, if the person has a will, it usually is enough to handle the distribution of the estate without a need for it to go to court.

If you were to die and you do not have a will but you are married, then everything you owned will likely go to your spouse if it is all jointed owned or considered community property. Any property that you owned jointly with someone will go to the other owner upon your death, regardless of who that person is.

Is your loved one a victim of undue influence?

One common reason why you or a family member in California may dispute the legitimacy of a loved one’s last will and testament is undue influence. It is common practice for people to update their wills periodically throughout their lives. But when a loved one’s estate plans contain radical changes from previous versions, you may start to suspect that their caregiver or a family member used some type of manipulation to gain from their estate. 

Seniors who are sick and incapacitated are more vulnerable to undue influence. It is a form of abuse that can be physical, sexual and emotional. The person who exerts the influence abuses the testator so they can profit from their estate when they die. An example of undue influence is when the manipulator making false promises to get the testator to make changes to their wills that go against their intent and wishes, states ThinkAdvisor. The influencer may keep the testator from seeing and communicating with their family, friends and loved ones. 

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